High Court overturns Pujut Assemblyman’s disqualification

KUCHING : DAP’s Pujut assemblyman Dr Ting Tiong Choon will keep his seat and the by-election scheduled this Tuesday will not go ahead as the Kuching High Court has overturned the Sarawak state legislative assembly decision.

Justic Douglas Cristo Primus Sikayun in his ruling today said the Speaker, Datuk Amar Mohamad Asfia Awang Nassar, had not properly applied the principle of natural justice to give Dr Ting a fair hearing and he had also acted “unconstitutionally and beyond his powers” in the May 12 proceeding in the assembly to disqualify Ting.

Ting had named Asfia, as the first defendant, Minister for International Trade and E-Commerce Datuk Seri Wong Soon Koh who moved the motion as the second defendant, the state assembly as the third and the Election Commission, the fourth.

Justice Sikayun said Asfia had failed to give Ting reasonable time to prepare his defence after the motion was tabled by Wong.

He said from the Hansard, Asfia had refused to stand down the assembly when requested by Ting’s DAP colleague, Tanjung Batu assemblyman Chiew Chiu Sing.

He said the failure to stand down does not give Ting the time he needed to discuss the charge against him, the issue of his citizenship in depth and to assemble his facts and documents.

Asfia’s role and conduct in the disqualification proceeding also came under the judge’s scrutiny.

Sikayun said from the Hansard, Asfia “had taken the role of a prosecutor” which made him impartial.

“The Speaker had descended into the area of debate. He should know his limits.”

Sikayun said Asfia had misinterpreted some of the law cited incorrectly and as the Speaker is the highest authority of the assembly, members look to him for guidance.

He said by giving wrong interpretation of the law, he was misleading the assembly in reference to Asfia’s interpretation of Articles 23(1) and 24(1) of the Federal Constitution on citizenship.

Asfia had told the assembly that under Article 24(1), Ting would lose his Malaysian citizenship automatically “the moment you acquire an Australian citizenship”.

Sikayun said Article 24(1) did not say that.

Article 24 (1) states: “If the Federal Government is satisfied that any citizen has acquired by registration naturalization or other voluntarily and formal act the citizenship of any country outside the federation the Federal Government may order may by order deprive that person of his citizenship.”

On Article 23 (1) which states any renunciation of citizenship must be registered in Malaysia, which Ting never did, Sikayun said this provision is for Malaysians who had renounced their Malaysian citizenship.

Ting had acquired Australian citizenship in 2010 but had renounced it to return to Malaysia.

The renunciation was accepted by the Australian government in April last year – a month before the state election.

Sikayun also ruled the state legislative assembly was not a competent body to hear the question of Ting’s Australian citizenship or election grievances.

He said if the legislature wants to disqualify him, the matter should have been referred to another competent body, like the court to determine it.

For election grievances, he said the Election Court is the body that has the power to hear it and not the state assembly.

For the state assembly to an hear election grievances tantamount to usurping the powers of the Election Court, he added.

The 51 year-old Ting was disqualified after the state assembly, voted 70 to 10 in favour of a ministerial motion tabled by Wong to throw him out for breaching Article 17(1)(g) of the Sarawak Constitution.

Article 17(1)(g) states that “a person is disqualified from being elected as an elected member of Dewan Undangan Negeri (state legislative assembly) if he has voluntarily acquired citizenship of or exercised rights of citizenship in and has made declaration of allegiance to any country outside the federation”.

The court also awarded Ting damages of RM100,000 with the cost to be shared equally between Asfia, Wong the second defendant and the state assembly, the third defendant.

Shanker Ram, who appeared for Asfia, informed the court he would be filing an appeal.

Ram’s application for a stay of execution was denied on the ground that if it had been given, the by-election would go ahead and it would create more problems later.

The nomination of candidates for the by-election was slated for Tuesday with polling slated for July 4.

Ting in his reaction said he always believed justice will prevail.

He won thePujut seat in a four-cornered fight in the last state election.

He had polled 8,899 votes to see off his nearest rival, the BN’s “direct candidate” Hii King Chiong who polled 7,140 votes.

The other two candidates, Jofri Jaraiee of PAS, who polled 513 votes, and independent Fong Pau Teck, who garnered 357 votes, both lost their deposits. – dayakdaily.com