Tian Chua - is he still MP or not.............

Lawyers representing Batu MP Tian Chua are attempting to seek a meeting with High Court judge Ghazali Cha to clarify his decision yesterday on whether the parliamentarian had been disqualified. Based on justice Ghazali's judgment yesterday, many lawyers have argued that the Batu MP, whose real name is Chua Tian Chang, has to vacate his parliamentary seat.

"We are trying very hard in trying to seek a review over yesterday's decision," said Amer Hamzah Arshad, one of Tian Chua's lawyers.

The lawyers had sent a letter to the judge late yesterday evening to seek a clarification from him. The letter was to ask the judge to either to review or interpret his judgment. But it is learnt that the judge had indicated - through the deputy registrar - that his judgment on "no by-election" was clear and there was no need to amend the fine of RM2,000.

Tian Chua said that he would wait for the judge's written judgment and insisted that he is still a parliamentarian. The Election Commission said that it is studying the case.

"Our legal adviser is looking into it now. We'll not issue any statement. It should now be under Article 53 of the federal constitution," EC deputy chairperson Wan Ahmad Wan Omar told Malaysiakini.

"The EC will just wait for any notification from the (House) speaker's office then we'll decide accordingly."

The Batu MP's status remains unclear as he had already paid the RM2,000 fine and did not ask for a stay of execution of the sentence. The problem over yesterday's High Court decision revolves around the interpretation of Article 48 of the federal constitution on the disqualification of an MP. The article says if an MP has been convicted by a court of law and faces a jail term of not less than 1 year or a fine of not less than RM2,000, he or she would be automatically disqualified and a by-election called.

Veteran lawyer and Bukit Gelugor MP Karpal Singh had alerted Malaysiakini yesterday over the possibility of the opposition lawmaker losing his seat.

"If the fine is RM2,000, he may lose his seat if he pays (the fine)."

DPP says Tian is out

According to Karpal, he represented former DAP MP Fan Yew Teng in 1975 where he was fined RM2,000 or six months' jail. Fan eventually had to vacate his Menglembu parliamentary seat. Karpal said if the judge sticks to the decision, the seat will have to be declared vacant.

"RM2,000 remains the cutting-off point. It must be less than this amount to be safe."

Karpal said that one option for Tian Chua is to appeal to the judge before the order (sentence) had been "perfected" - that is signed and sealed by the registrar. Karpal added that there is provision for Tian Chua to appeal despite Article 53 of the federal constitution stating that it is automatic for an MP to lose his seat as a result of the sentence.

"They have to file a notice of appeal to obtain leave. The application must be filed within 14 days. If this is done, the matter will have to be disposed off."

Meanwhile, deputy public prosecutor Ishak Mohd Yusoff said Tian Chua will have give up his seat by virtue of being fined RM2,000.

However, Bar Council constitutional committee chairperson Edmond Bon said there were two interpretations to Article 48 of the federal constitution - one is that a fine of “RM2,000 or more”, and the other “RM2,000 or less” which will automatically lead to the disqualification of an MP.

"When in doubt as in many cases, the benefit of the doubt should be given to the accused,” he said.

"Hence, Tian Chua should not lose his seat. Furthermore, the judge had ruled that he wanted to avoid a by-election."

Everyone's in a bind

Former United Nations special rapporteur Param Cumararaswamy, citing the Fan Yew Ting case in 1975, said that once an MP is fined RM2,000, he or she would lose the seat.

"In the Pairin Kitingan case, he was fined RM1,800 and hence he escaped from being disqualified."

In 1994, former Sabah chief minister Pairin, whose PBS joined the opposition between 1985 and 1994, was found guilty of corruption by the High Court and fined RM1,800. Param argued that the Dewan Rakyat speaker can make a decision on the matter to break the impasse.

"Once the judges have stepped down the bench, their decision stands," said Param.

Another lawyer, Sankara Nair, concurred with Param that the decision - and the fact that Tian Chua had paid the fine - put everyone in a bind. He said Tian Chua can only appeal to the Court of Appeal on a point of law and not the sentencing.

"This is stated clearly in the Court of Judicature Act where cases originating from the Magistrates Court can only be brought up to Court of Appeal on case laws," he said.

Tian Chua paid the fine yesterday despite maintaining his innocence. He said that he used his bail money as payment. The first-time parliamentarian won the racially-mixed Batu seat, located in the north of Kuala Lumpur, in 2008 by beating Lim Si Pin - son of former Gerakan chief Lim Keng Yaik - with a thumping majority of 9,455 votes.

The constituency of 67,652 voters comprises 44.3% Malays, 40.8% Chinese and 14.3% Indians.

source:malaysiakini

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