Tian Chua’s lawyers aren’t giving the full picture

TTF: Article 48(1)(e) of the Federal Constitution stipulates that a Member of Parliament (MP) is disqualified from contesting during an election should he be sentenced to jail for a term not less than one year or is fined not less than RM2, 000 and has not received a pardon.

What this means, is if you’re fined RM2,000 by the court for whatever reason and are seeking to contest in an election, your nomination will likely be rejected by the Election Commission (EC) of Malaysia on grounds that the fine imposed disqualifies you from contest.

Now, in 2009, the Magistrate’s Court sentenced Chua Tian Chang, better known as Tian Chua, to six months’ jail and fined him RM3,000 for injuring a policeman in 2007. The Batu incumbent appealed the conviction at the High Court and was granted a reduction amounting to RM1,000.

Put simply, Chua’s fine was reduced from RM3,000 to RM2,000 and not RM1,999, which should have been the case if indeed the presiding judge was serious in allowing the MP to contest during elections. So it seems weird that on one hand, the judge claimed that Chua would face no problems contesting in GE14, while on the other, he failed to consider reducing the fine by a further RM1 just to prevent the untoward.

Anyway, Chua was prevented from filing his nomination papers for the Batu parliamentary seat yesterday on grounds that the Shah Alam High Court had, on the 2nd of March 2018, imposed upon him a RM 2,000 fine. Just so that you know, the Batu MP was convicted under section 509 of the Penal Code, which deals with words or gestures intended to insult the modesty of a person.

Now, Chua’s lawyers cried foul.

According to one of them, the EC rejected his papers without elaborating or providing any explanation of any sort. But that’s a blatant and horrible lie – The Third Force was made to understand that the returning officer personally expressed – in no uncertain terms – that the disqualification had to do with the RM2,000 fine the High Court imposed upon Chua earlier in March.

Notwithstanding, Eric Paulsen didn’t seem to agree one bit with what the EC did. Venting his frustrations via Twitter, the executive director of Lawyers for Liberty wrote;

“This is wrong. The High Court judge was very clear during sentencing that following previous precedent, the fine of RM2,000 would not disqualify him from GE.”

However, what Paulsen deliberately omitted from his two cents worth was the finer nuances to the judges’ statement, nuances that would have put an entirely different complexion on the whole affair altogether.  

That is to say, irrespective if the judge had touched on the question of Chua’s eligibility in writing or in speech, his expression of opinion – which, effectively, is what it is – was in no way essential to the case being deliberated, meaning, his opinion wasn’t legally binding as a precedent.

In simple terms, the trial in which the judge opined on Chua’s eligibility related to an assault case and not the general election. As such, whatever the judge may or may not have said regarding Chua’s right to contest during the election was not something the EC needed to follow.

Lawyer Shamsher Singh Thind seems to concur on the last point, judging by an entry in his Facebook account that seems to rhyme along those lines.

PUTRAJAYA: PKR should not point fingers at the Election Commission (EC) when several of its candidates were disqualified from contesting in the 14th general election over their own mistakes.

Umno secretary-general Datuk Seri Tengku Adnan Tengku Mansor said the allegations that EC had a certain agenda to change the rules in the nomination of candidates were baseless as EC was just carrying out its responsibilities.

“Just adhere to EC regulations and I believe EC will also follow the law. If you have party problems, settle your own party problems,” he told reporters after officiating the groundbreaking ceremony for a multi-storey car park at Phase 5 and 6 Apartment Quarters in Precinct 9 here today.

In the nomination of candidates for GE14 yesterday, several PKR candidates were disqualified and among them was Tian Chua who could not defend the Batu parliamentary seat when his nomination papers were rejected for being fined RM2,000 for insulting police.

EC also rejected the nomination of PKR candidate, Dr Mohd Hafidz Rizal for the Kuala Balah state seat when he was confirmed a bankrupt while PKR Rantau candidate Dr S. Streram failed to submit his nomination forms for not carrying the candidate pass.

Tengku Adnan also said the opposition coalition was also trying to find technical grounds to declare Umno illegal for GE14 when 16 former Umno members filed for a judicial review for the party to be dissolved.

“But they forget that in Umno’s constitution, there is a clause that any member who takes Umno to court would be automatically expelled,” he said.

In the application for leave for judicial review filed three weeks before GE14, the group alleged the approval of the Registrar of Societies (RoS) for Umno to postpone its election to next year was against the party constitution.

On March 5, the RoS in a statement confirmed Umno’s application to extend its Supreme Council election for 2017 was approved in line with the provision of organisation’s constitution Article 10.17 which provides for the postponement of Supreme Council, division and branch elections, not exceeding 18 months from the date the election should have been held

Source: NST Online

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