‘DUN cannot interfere in Election Court’s decision’
KUCHING: The High Court here yesterday ruled that the State Legislative Assembly (DUN) has no power to interfere in the Election Court’s decision on the qualification of Dr Ting Tiong Choon as Pujut assemblyman.
Chong Siew Chiang, lead legal counsel for Dr Ting’s case, said the judge had accepted their grounds for the application to dismiss the Dewan’s decision on May 12 to disqualify Dr Ting as a member of the House.
“He (Judge Datuk Douglas Christo Primus Sikayun) expressed the view that the Dewan has no power to interfere in the matter, which had already been brought to the Election Court. In a situation like this, only the Election Court has the power to deal with this matter.
“That is expressly provided under Article 118 of the Federal Constitution which says that once a candidate has been elected as a member of the Dewan or the Parliament, the only way to challenge his qualification or the election results is by way of election petition,” he said when met by reporters after the judge delivered his decision.
Chong said “so far as the election petition is concerned, that avenue had already been explored and it was dismissed and (there was) no appeal.”
“That is the conclusion of the matter. Therefore, if you’re going to challenge it, you must go to the Election Court.”
He said even though Article 19(2) of the State Constitution provides that the Dewan’s decision is final and cannot be challenged in court, this provision applied to where a member was already elected and later on acted wrongfully.
For instance, he said if an elected member became bankrupt, had an unsound mind or pledged allegiance to another country, then that member’s qualification can be challenged in the Dewan, and that the Dewan’s decision will be final.
“Only in that circumstance will it (the Dewan’s decision) be final,” he stressed.
Chong said his legal team also won on the grounds of the principle of natural justice.
He said DUN Speaker Datuk Amar Mohd Asfia Awang Nassar did not give sufficient time to Dr Ting to defend himself when a ministerial motion sought to disqualify Dr Ting was tabled at 10.30am (May 12).
Chong said a DAP member of the House asked for half an hour from the Speaker for Dr Ting to prepare his statement but such request was rejected.
“So they (the Dewan) proceeded with the proceeding and at 12.10pm, they passed the motion and disqualified Dr Ting. So he (the judge) said the time is too little for Dr Ting.
“Natural justice means that you have to give people ample time to prepare. At least half an hour or an hour but this was not granted, and therefore it is in breach of natural justice,” said Chong.
He said the judge also stated that the Speaker cannot be a judge of his own case.
In Dr Ting’s case in the DUN sitting last month, he said Asfia was the prosecutor, the legislator and the judge to give the verdict which is not allowed.
“He (the judge) also said the interpretation of Article 23 and Article 24 of the Federal Constitution is for the court, to make the laws is for DUN. So he (Asfia) himself acted as the legislature and the judicature. That has infringed the principle of the separation of power.
“Most unfortunately, he (Asfia) interpreted it wrongly. Because he interpreted it wrongly, and not all members of the House are lawyers even though there are some but not conversant with the election laws, they would be misled by the Speaker. Therefore, that affected the decision (on May 12),” pointed out Chong.
While being pleased that his legal team’s application was granted, he also expressed gratitude to the judge for expediting the decision which was supposed to be delivered on Monday.
“Because of his concern and effort, it saves a lot of labour, money, time and work of not only the government but also the parties concerned in the by-election,” said Chong.
He (Judge Datuk Douglas Christo Primus Sikayun) expressed the view that the Dewan has no power to interfere in the matter, which had already been brought to the Election Court. In a situation like this, only the Election Court has the power to deal with this matter. — Chong Siew Chiang, lead legal counsel for Dr Ting’s case