KUALA LUMPUR, June 18 — The RM2,000 fine imposed on PKR MP Chua Tian Chang for biting a police officer is enough to disqualify him from his Batu constituency although the trial judge had meant otherwise, said a former Election Commission official.
The Batu MP’s only recourse now is if the ruling is changed by the Court of Appeal, should there be a second appeal, or if he receives a royal pardon.
The former Election Commission (EC) official told The Malaysian Insider that the law was clear that those fined RM2,000 and above will lose their seats.
The PKR politician popularly known as Tian Chua had his fine reduced from RM3,000 or six months’ jail after his appeal to the High Court here over the charge of biting a police officer during a protest in 2007. He paid the fine in lieu of a reduced sentence of two months’ jail.
“This matter is clearly stated in Article 48(1) of the Federal Constitution,” said the former official who requested anonymity.
“In this case, the court imposed a RM2,000 fine, not less than that... so it is clear in this case that the MP has been disqualified from the seat.
“Unless that MP files an appeal and if that appeal is rejected, then he can apply for a royal pardon,” he added.
Asked about the judge’s reasons for seeking to avoid a by-election and save costs, the former EC official said the trial judge should not have commented on matters outside his jurisdiction.
“The judge cannot set aside provisions in the Federal Constitution,” he said.
Under Article 48 of the Federal Constitution an MP is disqualified if he is convicted of an offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000.
In his book “General Elections in Malaysia”, former EC secretary and later chairman Tan Sri Abdul Rashid Abdul Rahman said, “Disqualifications under Article 48 of the Federal Constitution, if there is a doubt, must be resolved by the Dewan Rakyat or the State Legislative Assembly [under] Article 53(1) of the Federal Constitution and a similar article in the State Constitution.”
He gave the example of Menglembu MP Fan Yew Teng, who had sued the Dewan Rakyat secretary in 1975 after the DAP lawmaker was found guilty under the Sedition Act and fined RM2,000 or six months’ jail on Jan 13, 1975.
Fan filed an appeal at the Court of Appeal on the same day.
But he was informed by the Dewan Rakyat that his seat had been vacated under Article 48(1), and together with Article 50(1), the EC would make the necessary preparations for a by-election.
Fan brought the case to court for a decision and the court ruled that he had been fined and therefore disqualified but had the right to legal recourse, which meant the by-election had to be delayed until he exhausted all legal remedies.
In a related case, Fan fought against the Malaysian government where he asked for a court declaration over the Dewan Rakyat decision to vacate his seat, but the court decided, among others, that the Dewan Rakyat’s decision to disqualify an MP based on Article 53 of the Federal Constitution was final and cannot be questioned.
In Chua’s case, Justice Datuk Ghazali Cha rejected his appeal against the charges after hearing submissions from both sides, saying the Magistrates’ Court decision last Oct 22 was based on the facts and the law.
Ghazali said punishment was at the discretion of the trial judge unless it involved capital offences.
However, he noted that Chua was a first-time offender and that he should be treated equally despite being an MP.
He also noted that the punishment for the 47-year-old MP would disqualify him and cause a by-election that will have both social and economic costs, prompting him to revise the punishment.
Chua was charged with voluntary hurt towards Police Constable Rosyaidi Anuar, 22, from the Anti-Narcotics Division, KL Police Contingent, at the entrance to Parliament.
He was charged under Section 332 of the Penal Code, which is punishable with a jail term of up to three years or a fine or both.
Deputy Public Prosecutor Ishak Mohd Yusoff said the prosecution has yet to decide whether to appeal the decision.
