For Tian Chua, lawyers say time is of the essence

Chua’s disqualification was condemned by Opposition leaders including PKR deputy president Datuk Seri Azmin Ali, who claimed that the decision by the EC was in contempt of court. — Picture by Yusof Mat Isa
Chua’s disqualification was condemned by Opposition leaders including PKR deputy president Datuk Seri Azmin Ali, who claimed that the decision by the EC was in contempt of court. — Picture by Yusof Mat Isa

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KUALA LUMPUR, April 30 — PKR’s Chua Tian Chang could stand a better chance of challenging his disqualification by the Election Commission if he initiates this before rather than after the general election, according to legal experts.

While they did not mean his chances would diminish with time, they explained that launching the challenge now would afford the politician popularly known as Tian Chua more options.

On Saturday, the EC ruled that Chua was disqualified by a RM2,000 fine he received in March, notwithstanding the High Court’s explanation that the amount was chosen explicitly to avoid affecting his eligibility to run for and hold office.

“If Tian Chua institutes a legal challenge in respect of the EC’s decision to disqualify him before GE14, he could seek for an injunction to stop the elections of the Batu parliamentary seat,” said Malaysian Bar president George Varughese.

Malaysian Bar constitutional law committee co-chairman Surendra Ananth also suggested that seeking an injunction now would be the wiser option than to apply for an election petition, which he pointed can only take effect after May 9.

Besides an injunction, Surendra said Chua could also apply for a mandamus order to compel the EC to register him as a candidate.

A mandamus is a writ that makes it mandatory for the responding agency to execute its duty in relation to the order.

According to Varughese, Chua could hold off until the election to mount his challenge, which would force a by-election if successful.

At the Batu nomination centre on Saturday, Chua’s application was rejected after the returning officer ruled that the former’s RM2,000 fine imposed by the High Court in March as punishment for outraging the modesty of a police officer on duty made him ineligible.

The legality of the matter was never fully established as the Federal Constitution states that a candidate is disqualified if he has been fined “not less than RM2,000”.

Some interpret this to mean RM2,001 and above, but others including the late Karpal Singh believe that a fine of RM2,000 is exactly enough to trigger the disqualification.

Commenting on the matter, criminal lawyer Salim Bashir Baskaran noted the room for interpretation.

“The EC declared him as disqualified based on the literal reading of ‘not less than RM2,000’.

“This conundrum needs to be decided by the court (again), and if he succeeds, the candidate (Chua) can seek relief to declare the specific constituency election was tainted by irregularities in which will then pave way for a by-election,” he explained.

Chua’s disqualification was condemned by Opposition leaders including PKR deputy president Datuk Seri Azmin Ali, who claimed that the decision by the EC was in contempt of court.

High Court Judge Datuk Abdul Karim Abdul Rahman and Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia both previously ruled that the fine did not disqualify Chua from holding office at the time.

Article 48(1)(e) of the Federal Constitution states that the membership of a MP can be disqualified if the person has been convicted of an offence by a court and sentenced to imprisonment for a term of not less than one year, or to a fine of not less than RM2,000.

The Batu federal seat remains a crowded field despite Chua's disqualification as it will be contested by Gerakan's Datuk Dominic Lau, PAS's Azhar Yahya, and independents P. Prabakaran and Datuk Panjamorthy Muthusamy.

Chua first won the seat in 2008 and defended it successfully in 2013 by a majority of 13,284.

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