‘Federal Court ruling opens back door for elected reps to be kicked out’

Michael Kong

KUCHING, Feb 12: The Federal Court’s decision concerning former Pujut assemblyman Dr Ting Tiong Choon has set a dangerous precedent where the Speaker of a legislative assembly may choose to disregard all basic principles including the separation of powers and Res judicata, according to Michael Kong, special assistant to Sarawak DAP chairman Chong Chieng Jen.

Kong pointed out that yesterday (Feb 11)’s ruling was rather unfortunate as that the court held that the State Legislative Assembly’s decision was non-justiciable.

“In other words, the conduct of the Speaker cannot be challenged in court even if it is a clear contravention of the Federal Constitution.

“This also opens a Pandora’s box where disgruntled election candidates who have been defeated in their election petition may use the legislative assembly as a back door to disqualify a winning candidate,” he opined in a press statement.

He cited Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah, who was part of the nine-member Federal Court bench and in his summary of grounds wrote:

“13. The most pertinent observation is that our Federal Constitution does not confer on Parliament the jurisdiction to determine the validity of election results. That is a matter reserved exclusively for an election Court as recognised under Article 118 of the Federal Constitution.

“24. There are several other reasons suggesting that the existence of a pre- and the post-election regime is not a fanciful or invented insertion into the Sarawak Constitution but one which was deliberately intended by the framers of the Sarawak Constitution. This is in addition to the choice of language i.e. by deliberately employing the phrase ‘has ceased’.

“25. Firstly, the pre- and post-election dichotomy respects the doctrine of separation of powers. If I were to sustain the submission of the Respondents, it would mean that if in the event that the Election had held that the Respondent is not disqualified in the election petition, the DUN would have a power to ignore the ruling of the Election Court and in fact, can override that decision by tabling a ministerial motion as was done in this case. That proposition is a blatant disregard for the doctrine of separation of power which I am prepared to allow.”

Asserting that Pakatan Harapan (PH) will not use such tactics to undermine election results, Kong however said the ruling nevertheless set a dangerous precedent for future results.

“Any coalition and/party that holds the simple majority in a legislative assembly can easily move a motion, pass it and thereafter disqualify any of its members without any repercussions.

“We are now on a slippery slope and until another Federal court decision comes along to overturn it; we are stuck with it,” he added.

Meanwhile, the Federal Court ruled that the Sarawak State Legislative Assembly was right in disqualifying Dr Ting as the assemblyman for Pujut over his dual citizenship status.

It overturned a Court of Appeal ruling in a 7-2 majority decision, and cited Article 19 of the Sarawak Constitution and Article 72 (1) of the Federal Constitution which state respectively that the assembly has the final say in such a matter and that assembly proceedings cannot be questioned in any court.

Following this decision, Dr Ting lost the Pujut seat.

Federal Court judge Datuk Abdul Rahman Sebli, who delivered the decision, said Dr Ting’s loyalty to Malaysia was questionable after he had pledged loyalty to Australia and exercised the rights of an Australian citizen.

“The state assembly was, therefore, not wrong to disqualify and remove him from the assembly as he was unfit to be a member or to continue to be a member of the assembly,” he said.

He also said that a citizen cannot acquire and renounce any citizenship at will and when it suits him or her while, at the same time, refusing to give up Malaysian citizenship. He said that under the Federal Constitution, the person could be stripped of his or her citizenship.

He said a person who is disqualified for election to the assembly cannot remove the disqualification simply by renouncing his or her foreign citizenship.

Justice Abdul Rahman said that it is wrong and goes against the spirit of Article 17 (1) (g) of the Sarawak Constitution to allow a disqualified person to remain in the state assembly as an elected member, which would defeat the purpose of going through the election process to appoint only qualified persons to the assembly as elected members.

“It is against the law for a disqualified person to sit in the state assembly as an elected member and enjoy all the privileges accorded to a member,” he said.

Justice Abdul Rahman said the state assembly had the power to disqualify and remove Dr Ting from the assembly for having acquired Australian citizenship.

He said Article 72 (1) of the Federal Constitution prohibits the court from questioning the decision of the state assembly and the court would be in breach of that provision if it interferes with the exercise of that power. — DayakDaily