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Disqualified or not disqualified, that is the question. The issue now is not about the judge not wanting Tian Chua to be disqualified, or about a possible Batu by-election – it’s the law.

It boils down to the interpretation of Article 48(1)(e) of the federal constitution. On one hand, if one is to follow the decision held in Fan Yew Teng v Setia Usaha Dewan Ra’ayat [1975] – then Tian Chua would be automatically disqualified.  

The court also held that Article 53 gives the Parliament the overriding power to make a decision as to disqualification.  But in Tian Chua’s position, Article 53(2) states that the exclusive power of the Parliament will not apply. So I am inclined to agree with the statement by constitutional lawyer Tommy Thomas on this point.

Fan Yew Teng’s case also decided that Parliament can exercise its power even when Tian Chua has not fully exhausted his legal right to appeal or to seek a pardon. Therefore it is my humble opinion that the Dewan Rakyat Speaker Pandikar Amin Mulia was wrong in saying that the Parliament can only take action once Tian Chua has exhausted all legal avenues.  

However, again from the language of Article 53(2), it appears that the Parliament has no power to decide for Tian Chua. That means if the government is to table any motion in the Parliament after this, any decision thereof may be deemed invalid.

On the other hand, in Public Prosecutor v Leong Ying Ming [1993], the Supreme Court held that ‘not less than five years’ means five years and one day onwards, a case which has been strongly used by Tian Chua’s lawyers and Minister in the Prime Minister’s Department, Nazri Abdul Aziz. They interpreted it to mean that the fine imposed on Tian Chua will not disqualified him.

This is a later case and decided by a higher court, ie, the Supreme Court. Therefore, under the principle of judicial precedent, it should prevail over Fan Yew Teng case. Whether the facts and legal implications of this case is applicable to Tian Chua’s case more than the latter will be an issue to be decided.  At the end of the day, very much depends on what is Tian Chua’s next course of action within the expiry of the 14 days.

The writer is chairperson, Legal & Public Complaints Bureau, Gerakan Youth Wing.

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