The Court of Appeal today ruled today that a notice of appeal filed by the Sarawak legislative assembly's secretary was valid.

The notice of appeal was against the High Court of Sabah and Sarawak's decision in Kuching to retain DAP's Dr Ting Tiong Choon as Pujut assemblyperson.

This is despite Ting's counsel arguing that the notice was invalid, as the High Court decision on June 17 was not brought to the legislative assembly for the 82 elected assemblypersons to vote on whether to appeal the High Court's decision.

Lawyer Tan Kee Heng, who represented Ting, said since the assembly had not been in session since May, it was improper for the secretary to file the appeal for the assembly as he only has an administrative function.

Tan also argued that the Kuching High Court judge Douglas Primus Sikayun had ruled that the state speaker Amar Mohammad Asfia Awang Nassar had misled the members of the legislative assembly especially on Articles 23 (1) and 24(1) of the Federal Constitution regarding the renunciation of citizenship and deprivation of citizenship on acquisition or exercise of foreign citizenship.

“This may have influenced the members into voting as they did and in so doing their votes may be tainted,” he read from the judgment. Tan also pointed out the need to go to the legislative assembly with the court decision before the appeal was filed.

Sarawak deputy attorney-general Saferi Ali told the court that the notice was valid as they had acted on the legislative assembly secretary’s instruction and they had represented the speaker and legislative assembly at the High Court.

A three-member bench led by Justice Rohana Yusof ultimately ruled that the secretary's notice, which was filed by the Sarawak attorney-general’s chambers on behalf of the legislative assembly was valid.

The other two judges were Justice Vernon Ong and Justice Suraya Othman.

“We have arrived at a unanimous decision based on the facts and circumstances. The notice of appeal lodged by the state attorney-general is a competent appeal and we are dismissing the preliminary objection,” she said.

Dismissing another preliminary objection

The three-member bench also dismissed another preliminary objection made by Ting's lawyers over the notice of appeal filed by Sarawak speaker Mohamad Asfia Awang Nassar, which they claimed as improper as they listed Ting along with the state’s second finance minister Wong Soon Koh, the legislative assembly and the Election Commission as respondents.

Ting's other counsel Chong Siew Chiang said naming Wong, the legislative assembly and EC as respondents would result in confusion, as the three were named as respondents along with Mohammad Asfia (photo) when the originating summons was filed by Ting at the Kuching High Court.

Senior lawyer Cecil Abraham, who represented Mohamad Asfia, said the issue raised was frivolous and the preliminary objection should be dismissed.

On May 12, the Sarawak legislative assembly ruled by majority vote to disqualify Ting as Pujut assemblyperson on the grounds that he allegedly held Australian citizenship.

However, this decision was overturned by the High Court in Kuching in June.

With the decision today, the appellate court has fixed Oct 26 to hear the appeal in the Court of Appeal in Kuching.

A Sarawak legislative assembly sitting is scheduled to be held on Nov 8, where a possible reversal of the High Court's decision may affect the Pujut assemblyperson's chances of maintaining his seat.

Commenting on today's decision, Mohamad Asfia said he was glad and thankful that the Court of Appeal had dismissed the preliminary objection and hoped that the legislative assembly sitting could be conducted in November.

“I hope that the hearing of this appeal could be done before that,” he told reporters before the appellate court fixed the date of the appeal for Oct 26.

Tan and Chong told reporters that they would seek instructions from Ting on whether to file a leave to appeal on today's decision with the Federal Court.