Dilemma over Batu

Part 1: Is Tian Chua disqualified as a Member of Parliament (MP) according to the Federal Constitution?

“[B]y-election requires huge expenditure and affects the people’s well being and harmony among the races…I opine that a sentence which is commensurable, which does not affect many parties, is a fair sentence. The sentence handed down by the Magistrate is set aside and substituted with a RM2,000 fine or two months jail.”

High Court judge Datuk Ghazali Cha reducing Batu MP Chua Tian Chang’s sentence, for biting a police officer in December 2007, to prevent him from being disqualified as an MP. He also said the magistrate court’s original sentence — six months jail and a RM3,000 fine — was too harsh since Chua was a first-time offender. (Source: Tian Chua only fined RM2,000 after appealing to High Court, Bernama, 17 June 2010)

“[A] person is disqualified from being a member of either House of Parliament if he [or she] has been convicted of an offence by a court of law in the Federation and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000 and has not received a free pardon.”

Federal Constitution Article 48(1)(e) reads. Veteran lawyer and DAP chairperson Karpal Singh said Chua would have to vacate his seat unless he appealed against his conviction within 14 days of the judgement. Karpal cited the 1975 case of Fan Yew Teng v Setiausaha Dewan Rakyat, in which Fan was disqualified as an MP after being fined RM2,000 and sentenced to six months’ jail for sedition.

Lawyer and Segambut MP Lim Lip Eng, from DAP, said the judge had either made a blunder or wanted to let Chua choose between a fine and a jail sentence.

However, Chua’s lawyers Ranjit Singh and Amer Hamzah Arshad highlighted the 1993 case of PP v Leong Ying Ming, in which the Supreme Court interpreted “not less than five years” as more than five years. Hence, they said Chua would only be disqualified if he was fined more than RM2,000. (Source: Federal Constitution, Attorney General’s Chambers website)

“All law must be interpreted purposively and not literally. Literally, the law (in this case) seems to imply that RM2,000 is a disqualifying amount. But here, we have two conflicting precedents, and some statements by the appeal judge (in the High Court) that a particular consequence must be avoided.”

Constitutional law expert Prof Emeritus Datuk Dr Shad Saleem Faruqi saying that Justice Ghazali never intended to disqualify Chua as an MP according to his judgment. Therefore, that is the spirit that should be upheld.

After meeting Chua’s lawyers on 21 June 2010, Justice Ghazali confirmed that he never intended to disqualify Chua. But he also said he could not revise his judgment as he had already delivered it. (Source: Judge ‘didn’t want a by-election’, The Star, 19 June 2010)

Part 2: Passing the buck – Can Dewan Rakyat make the call?

“We will wait for the Speaker’s office and then decide on the next course of action.”

Election Commission (EC) deputy chairperson Datuk Wan Ahmad Wan Omar announcing that the EC would have to wait to hear from the Dewan Rakyat Speaker on whether Chua had been disqualified because of the High Court decision. Wan Ahmad said according to Article 53(1) of the Federal Constitution, Parliament had the final say on the matter. (Source: EC waiting for Speaker to decide on rep’s status, The Star, 19 June 2010)

“I, as the speaker, cannot write to notify the Election Commission that a seat has fallen vacant. This must be determined by Parliament.”

Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia saying he does not possess the power to remove an MP. He added that Chua would remain an MP until a motion was tabled in Parliament to determine his position. (Source: Only a vote in Parliament can determine Tian Chua’s position as MP — Speaker, Bernama, 21 June 2010)

“Article 53(2) specifically bars Parliament from making a decision in the case of a disqualification under Article 48(1)(e). Otherwise it would be a violation of the separation of powers. You could have a situation where a party with majority seats in Parliament can push the House to hold that a three-year jail term or RM3,000 fine did not disqualify an MP who is a party member. That’s why Article 53(2) states very clearly that the seat shall become vacant in such cases.”

Constitutional lawyer Tommy Thomas clarifying that Parliament cannot interfere with Chua’s position as MP as he was disqualified under Article 48(1)(e) of the Federal Constitution. (Source: Lawyers: Parliament cannot disqualify or declare seat vacant, The Star, 21 June 2010)

Part 3: Joining the fray

“If Tian Chua were to choose the (two) months’ prison term, this issue would not arise.”

Dewan Rakyat Deputy Speaker Datuk Dr Wan Junaidi Tuanku Jaafar saying that Chua could have chosen to serve the two-month imprisonment, instead of paying the RM2,000 fine, if he did not want to lose his parliamentary seat. (Source: Go to jail to stay as MP, suggests deputy speaker, Malaysiakini, 21 June 2010)

“All this talk of whether the judgment states I can hold on to the seat or not was started by some journalists who were not in court and then started questioning the interpretation of Article 48.”

Chua, arguing that the judge had intentionally reduced his sentence to avoid a by-election. Hence, there should not be further confusion over the issue. However, on 22 June, Chua’s counsel Ranjit said the MP would apply for leave to appeal against the court decision that he was guilty of biting a police officer. (Source: Tian Chua: Go back to what the judge said, theSun, 18 June 2010)

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