DUN speaker grateful leave to appeal granted by Federal Court

Mohamad Asfia speaking at the press conference.

by Karen Bong

KUCHING, July 25: State Legislative Assembly (DUN) Speaker Datuk Amar Mohamad Asfia Awang Nassar expressed gratitude to the three Federal Court judges for unanimously allowing his appeal against the decisions of the High Court and Court of Appeal.

“The Federal Court allowed seven questions to be argued in the Court of Appeal encompassing five questions from the three applicants and two questions from the respondent Dr Ting Tiong Choon,” he told a press conference at the DUN Complex here today.

“Our counsels made a submission of 19 reasons why the Court of Appeal should grant leave to the three applicants to appeal against the decisions of the High Court and Court of Appeal,” he revealed.

The Federal Court earlier today granted leave of appeal against the decision of the High Court and Court of Appeal in reinstating Dr Ting Tiong Choon as Pujut assemblyman.

The DUN, its Speaker Mohamad Asfia and Second Finance Minister Datuk Seri Wong Soon Koh filed the appeal to the Federal Court.

The unanimous decision was reached by the panel of judges comprising of Chief Judge of the Sabah And Sarawak High Court Datuk Seri Panglima David Wong Dak Wah, Datuk Setia Mohd Zawawi Salleh and Nallini Pathmanathan.

On July 13, 2018, the Court of Appeal, in a majority decision, upheld a High Court decision ruling that the disqualification of Dr Ting by the DUN over his alleged Australian citizenship was unlawful.

The appellate court dismissed the appeal brought by Mohamad Asfia and Wong against the High Court decision, stating that the state assembly did not have the jurisdiction to disqualify Dr Ting before his election in 2016.

Prior to this, the High Court in its decison on June 17, 2017 made it clear that the DUN’s move to disqualify Dr Ting was unlawful given that the House had acted beyond its constitutional limits.

Dr Ting was disqualified as Pujut assemblyman on May 12 following a motion tabled by Wong alleging that he was holding dual citizenship (Malaysian and Australian).

He subsequently filed an originating summons in the Kuching High Court to challenge the DUN’s decision.

“Do you mean to say that the Dewan has no jurisdiction, so powerless to remove (Dr Ting). He knows he is bankrupt but it was not raised on nomination day and he got elected.

“Surely, the Sarawak Constitution and Standing Order give jurisdiction to the Dewan. Does the Dewan has jusrisdiction or not which the court has never given any ruling on this. This must be addressed,” Mohamad Asfia said.

He also said that the majority of Court of Appeal and High Court failed to appreciate two points which illustrated that there was no breach of the rules of natural justice and/or procedural fairness.

“The first respondent (Dr Ting) and Chong Chieng Jen (Kota Sentosa assemblyman) were afforded 50 minutes to speak against the Motion.

“They were asked repeatedly to address the factual issue of Dr Ting’s Australian cisitzenship (which turned out to be true and not in dispute), the Pledge of Allegiance and the exercise by Dr Ting of his right as an Australian citizen and his positive obligation as a citizen of Australia to vote in the Australian elections.

“Dr Ting chose not to address these allegations specifically yet has the temerity to allege breach of natural justice.”

Mohamad Asfia opined that the conclusion was that the learned High Court judge erred in law on this and the decision by the High Court judge cannot and should not be allowed to stand.

“The edifice of the parliamentary democracy is constructed on the substratum of the doctrine of separation of powers between the executive, legislative and judiciary,” he said.

“If you obliterate the doctrine of separation of powers, the entire structure of parliamentary democracy will crumble,” he added.

Mohamad Asfia further questioned if the decisions of the Speaker in all sittings should be subjected to judicial interference.

“How can you function (in that way)? So that’s why this is of paramount public importance that the Federal Court resolve this once and for all,” he said.

Describing this as a landmark case, he said that in the appeal proper, there may be five or seven, if not nine judges, to hear the case.

He reiterated that Dr Ting’s disqualification was not the decision of the Speaker, but a ministerial motion voted in the DUN with 70 in favour and 10 against.

Mohamad Asfia was represented by counsels Tan Sri Cecil Abraham and Shankar Ram Asnani while Wong by counsel George Lo and DUN by deputy attorney-general Saferi Ali. — DayakDaily