Decision tomorrow on Tian Chua's challenge over disqualification

The High Court in Kuala Lumpur will deliver its decision tomorrow on the preliminary objection raised by the Attorney-General's Chamber in the legal challenge mounted by PKR vice-president Tian Chua.

This is over his disqualification from defending the Batuparliamentary seat on nomination day on Saturday. Polling is scheduled for May 9.

The Election Commission's returning officer Anwar Mohd Zains in making the disqualification said it was because he was previously fined RM2,000 for insulting a policeman.

The High Court had before this ruled that a RM2,000 fine does not disqualify an elected MP from contesting again.

Senior federal counsel Amarjeet Singh said Tian Chua should file the challenge before an election judge as stipulated under Article 118 of the Federal Constitution.

"The decision of the returning officer is considered final and cannot be challenged. If one wants to challenge it has to be done via an election petition," he said.

As this case concerns an election, then it should go to the election court and not the civil court as the latter does not have the jurisdiction, he added.

Here, Amarjeet said that in election petition cases, the case will be heard by the chief justice or a person appointed by the CJ to be the election judge.

"This court does not have jurisdiction to hear this application," he emphasised.

Article 118 states no election to the house of representatives or to the legislative assembly of a state shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held.

However, Tian Chua's lawyers, led by Gurdial Singh Nijhar (below), told the court that their client was seeking a declaration on his status, not on this general election alone.

"He wants a declaration from the court that he can contest. What if he wants to contest in other elections but the returning officer does not allow it. So his status over the RM2,000 fine must be clear," he said.

"He wants his status to be determined and this is allowed as in the Zambry Abdul Kader case where an application was filed to determine his status as the Perak menteri besar," he said.

'Did not disqualify'

Such relief, Gurdial said, cannot be obtained from an election court and the present court need not wait for something to happen before hearing this matter.

He said the High Court has ruled that Tian Chua did not lose his seat following the RM2,000 fine and Parliament speaker Pandikar Amin Mulia also ruled the fine did not disqualify him to be an MP.

"Tian Chua continues to be in the House and participates in debates and in the legislature. So if he is disqualified, what about his activities when he was in the Parliament? Were they illegal?" he asked.

"As a result of this, this civil court has the jurisdiction to hear this application as this is not an election petition matter," the lawyer said.

"We have the right to argue this case and the matter can be heard on its merits," he said adding there was no usurpation of the powers of the election court.

"The court should not turn away this case," he said.

Justice Nordin Hassan said as he received the case authorities only today, he will deliver a decision tomorrow at 9 am.

This morning, the courtroom was full to the brim while outside scores of Tian Chua's supporters gathered outside. - Mkini