NEWS ANALYSIS Batu MP Tian Chua is being closely watched to see if he will appeal the fine of RM2,000 for having been found guilty of biting a police constable on the arm three years ago.

Chua has until July 1 to file an appeal over the amended sentence imposed by the Kuala Lumpur High Court last Thursday, and which has placed his elected post in jeopardy.

The PKR director of strategy had indicated to journalists prior to the ruling that he would not appeal, whatever the outcome.

azlan However, he is now in danger of having to vacate the seat and being barred from contesting an election for the next five years, as stipulated by Article 48 of the federal constitution.

For all that Justice Ghazali Cha stated that his intention is to prevent a by-election for the seat, this may well be the outcome, given the uncertainty surrounding his decision and subsequent refusal to review it.

Some feel it would be best for Chua to lodge an appeal, to resolve the matter once and for all.

Malaysian law provides a two-tier system of appeal from where the case originates. Since Chua’s case originates from the Magistrate’s Court and the appeal was heard at the High Court, he may take the matter to the Court of Appeal if he gets permission to do so.

The appeal will only deal with points of law, including the conviction and the status of the fine. Chua has steadfastly maintained his innocence and questioned the verdict.

Up to now, the prosecution and defence have both skirted a direct answer as to whether either side plans to lodge the appeal.

bar council judiciary dinner 170408 ambiga inteviewed Former High Court judge Syed Ahmad Idid Syed Abdullah, former Bar Council chairperson Ambiga Sreenevasan ( left ) and DAP national chairman Karpal Singh hold the view that plain reading of Article 48 means that Chua is disqualified from holding the Batu seat.

Syed Ahmad said the definition of ‘not less than RM2,000' in Article 48 covers the quantum of RM2,000, despite the decision in the Leong Ying Ming drug case cited by Chua’s lawyers.

Constitutional expert Tommy Thomas also agrees that a plain and obvious interpretation would be that it covers the RM2,000.

“Take a piece of paper and write RM1,999, RM2,000 and RM2,001. If you look at Article 48, the (phrase) ‘not less than RM2,000' would include the RM2,000. It is plain and obvious,” Thomas said.

He however, acknowledged that he is not aware of the Leong Ying Ming case, where Justice Gunn Chit Tuan of the Supreme Court interpreted the phrase ‘not less than five years’ to mean at least five years and one day.

‘Right decision’

Syed Ahmad and Thomas agreed the right decision, when faced with uncertainty, would be to appeal.

Ambiga, too, said Chua could let the Court of Appeal resolve the issue once and for all, since the judge’s intention is clearly to prevent a by-election.

She noted that a second option would be to leave the matter as it is, since Chua has deemed that he is not disqualified as MP.

“If he does this, it is up to the relevant parties to act if they wish to call a by-election on the basis that he is disqualified. The matter of disqualification may then be re-opened at that stage,” she said.

“It is important that we do not make or interpret law just to suit any particular situation but that we always act on principle and the law as it is.”

She pointed out that Article 53 cannot and should not be relied on to resolve this situation.

Article 53 concerns a decision employed or enforceable on the Parliament when an MP is supposedly disqualified is final. However, Article 53 (1) holds that if a person had been found guilty, the Parliament may not withhold the disqualification.

Subsection 53(2) reiterates the person loses his seat automatically, but, clause (4) indicates that the person has a 14-day period to appeal, and exhausting the process through a pardon.

kuala terengganu parliament by election spr ec announcement 051208 wan ahmad wan omar “Article 53(2) makes it clear that Article  53(1) does not apply in such situations as in Chua’s case, particularly since the decision was that of a court. Parliament cannot override that decision and this accords wholly with the doctrine of separation of powers,” added Ambiga.

Election Commission (EC) deputy chairperson Wan Ahmad Wan Omar ( right ) had said last Friday that it is studying the matter and “will wait for any notification from the Speaker’s office” before deciding accordingly.

Dewan Rakyat deputy speaker Wan Junaidi Tuanku Jaafar said this morning that speaker Pandikar Amin Mulia will wait for the official sealed judgment before pursuing the matter.

However, the Speaker may well be hamstrung by the Federal Court ruling in the Perak case - that it is the EC that must determine if there is a vacancy, not the Speaker.

De facto Law minister Mohd Nazri Abdul Aziz was quoted as saying yesterday that Parliament need not decide on Chua's status, also pointing out that BN does not want a by-election.

“My view is that the court is a place where the judge will make interpretations on the provisions of the acts and laws. The judge has decided to fine Tian Chua RM2,000 because he did not want him to be disqualified,” the minister had said.

Against this backdrop, it is no longer a matter of who will make the next move - but whether anyone is prepared to do so when the outcome can only be a political hot potato.