Tian Chua's status: Judge to meet lawyers on Monday

High Court judge Justice Ghazali Cha has agreed to meet lawyers from both sides in the case involving Batu parliamentarian Tian Chua on Monday morning.

Lawyer Ranjit Singh and Amer Hamzah Arshad confirmed that the judge would meet both parties - the prosecution team and their side - to clarify matters concerning yesterday's judgment.

The defence lawyers failed to meet Justice Ghazali today to determine whether Tian Chua had indeed been disqualified. Based on the judgment yesterday, many lawyers have argued that the Batu MP, whose real name is Chua Tian Chang, has to vacate his parliamentary seat.

"We are trying very hard to seek a review over yesterday's decision," said Amer Hamzah Arshad (left), one of Tian Chua's lawyers. The lawyers had sent a letter to the judge late yesterday evening, seeking a clarification from him.

The letter asked the judge to either review or interpret his judgment.

But it is learnt that the judge had indicated - through the deputy registrar via a letter - that his judgment on "no by-election" was clear and there was no need to amend the fine of RM2,000.

Another lawyer representing Tian Chua, Razlan Hadri Zulkifli, when contacted by Malaysiakini this afternoon, confirmed they could not meet Justice Ghazali today.

Razlan maintained that the rightful interpretation is that (the fine) should be "more than" RM2,000 in order to trigger disqualification.

As for Tian Chua, he said that he would wait for the judge's written judgment and insisted that he was still an MP.

Still being studied

Meanwhile, the Election Commission said that it was studying the case.

"Our legal adviser is looking into it now. We'll not issue any statement. The EC will wait for any notification from the (House) speaker's office and then we'll decide accordingly," EC deputy chairperson Wan Ahmad Wan Omar told Malaysiakini.

The Batu MP's status remains unclear as he has already paid the RM2,000 fine and did not ask for a stay of execution of the sentence.

The problem over yesterday's High Court decision revolves around the interpretation of Article 48 of the federal constitution on the disqualification of an MP. The article says if an MP has been convicted by a court of law and faces a jail term of not less than one year or a fine of not less than RM2,000, he or she would be automatically disqualified and a by-election called.

Central to the issue is the interpretation of Article 48 of the Federal Constitution on the definition of "not less than RM2,000" fine for disqualification. According to Amer Hamzah, based on the Supreme Court decision in the case of the Public Prosecutor vs Leong Yin Ming, the definition of the term "not less than five years" means five years and one day. “This case shows how the Supreme Court decided on the said phrase of not less than,” he said, adding that if this was adopted, the term "not less than than" should mean RM2,000.01 sen or more. Based on this, Tian Chua is still Batu MP."

Veteran lawyer and Bukit Gelugor MP Karpal Singh alerted Malaysiakini yesterday over the possibility of the opposition lawmaker losing his seat.

"If the fine is RM2,000, he may lose his seat if he pays (the fine)." DPP says Tian is out According to Karpal, he represented former DAP MP Fan Yew Teng in 1975, where Fan was fined RM2,000 or six months' jail. Fan eventually had to vacate his Menglembu parliamentary seat.

Karpal said if the judge stuck to his decision, the seat would have to be declared vacant. "RM2,000 remains the cutting-off point. It must be less than this amount to be safe." Karpal said that one option for Tian Chua was to appeal to the judge before the order (sentence) had been 'perfected' - that is signed and sealed by the registrar.

Karpal added that there was provision for Tian Chua to appeal, despite Article 53 of the federal constitution stating that it is automatic for an MP to lose his seat as a result of the sentence. "They have to file a notice of appeal to obtain leave. The application must be filed within 14 days. If this is done, the matter will have to be heard until it is disposed of."

Razlan Hadri, however, had an opposing view on Fan's case as it involved disqualification following the seat being declared vacant by Parliament after the MP was found guilty of sedition. “He had taken action on the parliament secretary for declaring the seat vacant, whereas he had not exhausted his appeal. I think this is a different scenario.”

Meanwhile, deputy public prosecutor Ishak Mohd Yusoff and DPP Mohd Hanafiah Zakaria, who handled the case, said Tian Chua would have give up his seat by virtue of being fined RM2,000. However, Bar Council constitutional committee chairperson Edmond Bon said there were two interpretations to Article 48 of the federal constitution - one is that a fine of “RM2,000 or more”, and the other “RM2,000 or less”, which will automatically lead to the disqualification of an MP. "When in doubt, as in many cases, the benefit of the doubt should be given to the accused,” he said. "Hence, Tian Chua should not lose his seat. Furthermore, the judge had ruled that he wanted to avoid a by-election."

Param: Judge's decision stands Former United Nations special rapporteur Param Cumararaswamy, citing the Fan Yew Ting case in 1975, said that once an MP was fined RM2,000, he or she would lose the seat. "In the Pairin Kitingan case, he was fined RM1,800 and hence he escaped from being disqualified." In 1994, former Sabah chief minister Pairin, whose PBS joined the opposition between 1985 and 1994, was found guilty of corruption by the High Court and fined RM1,800. Param argued that the Dewan Rakyat speaker could make a decision on the matter to break the impasse. "Once the judges have stepped down the bench, their decision stands," said Param. Another lawyer, Sankara Nair, concurred with Param that the decision - and the fact that Tian Chua had paid the fine - put everyone in a bind. He said Tian Chua could only appeal to the Court of Appeal on a point of law and not on the sentencing. "This is stated clearly in Section 50 of the Courts of Judicature Act, where cases originating from a magistrate's court can only be brought up to Court of Appeal on points of law," he said.

However, at the Court of Appeal, an appeal originating from the magistrate's court is not an automatic right as leave (permission) has to be gained. The section also states that an application for leave shall be made within 14 days after the date of the decision of the High Court. Tian Chua paid the fine yesterday, despite maintaining his innocence. He said that he used his bail money as payment.

The first-time parliamentarian won the racially-mixed Batu seat, located in the north of Kuala Lumpur, in 2008 by beating Lim Si Pin - son of former Gerakan chief Lim Keng Yaik - with a thumping majority of 9,455 votes. The constituency of 67,652 voters comprises 44.3 percent Malays, 40.8 percent Chinese and 14.3 percent Indians.