Tuesday, May 01, 2018

Court Injunction NOW to stop voting in BATU - Only way for justice to be done?

What will the people of Malaysia do when their rights in GE14 have been violated...and this time by the Election Commission?

They have been denied the right to a free and fair elections when on nomination day, certain candidates were 'disqualified' for various reasons ...thus the people's choices of candidates have been denied...

Most popular was the case of Tian Chua - The EC disqualified him because he had been sentenced previously to a fine RM2,000...another was disqualified because he was allegedly prevented from submitting his nomination papers by 10.00am - 

What must be done by all these 'potential' candidates, who are contesting their applications is to go to court IMMEDIATELY and get an INJUNCTION to stop the elections from proceeding in the said Constituencies...

YES - the Court can grant a temporary INJUNCTION to stop the election process proceeding in these constituencies. This application can be heard ex-parte on an URGENT basis - that means the judge will hear the application of just one party - the applicant(the affected 'candidate') and IMMEDIATELY ORDER THAT THE ELECTIONS IN THESE CONSTITUENCIES to not proceed further to voting on the 9th and 5th(the Early Voting date) of May...until the said applications could be heard inter-parte(where 2 parties will be heard)...and thereafter even continue with the INJUNCTION until the whole case is heard and disposed of..

The effect of such an injunction would be that everything will stop in the said Constituencies - there will be no more voting. 

NO PROBLEM - Because after the courts have heard the case, then the Election Commission can simply have the Elections for the said Constituency later...

Without such an application for an injunction, ...well it may be academic and Batu Voters may not get a chance to vote for Tian Chua, and some other may be declared winner on the 9th, who will be able to act as MP - which is so wrong. Better for the Court to stop the Elections in Batu now

...Image result for tian chua

THIS IS THE ONLY WAY THAT JUSTICE BE DONE. To not stop the Elections means that election will proceed...voting, counting of votes ...and then the EC declaring the winner...

It will be most UNFAIR for the 'winner' also in such a situation, for very UNFAIR if only months later, the court decides that what the Election Commission(or government) did was wrong and nullifies the election...

Best, that an INJUNCTION be given now...stop the Election proceeding in the said Constituencies NOW until the court decides...and the RIGHTS OF THE PEOPLE AND THE AFFECTED 'CANDIDATE' IS RESTORED. 

Nobody wants to win by MISTAKE...surely not the UMNO-BN...surely not any of the Opposition parties or candidates contesting in GE14...

What will the candidates affected, and/or their political parties do?

Make statements and complain ....not take the LEGAL REMEDY AVAILABLE to them...so that these affected 'candidates' get a chance to contest, and the People get their right to choose from all available candidate option...

URGENCY ....so, it was most shocking to hear that the Courts delayed Tian Chua's application until Thursday...In my opinion, they should have heard it immediately on Monday...and issued an injunction immediately stopping the Batu elections...

Will the JUDGES and Courts act fairly and justly?

Remember, if the said affected 'applicants' lose their case eventually, then maybe they will have to pay a Hefty Damage...Likewise, the EC Officer, the EC too...if the candidates are successful in their challenge..

There will be another NOMINATION...another period of campaigning, voting, vote counting and declaration of the victor...

FREE AND FAIR ELECTIONS - that is what we all want?

ELECTION COMMISSION REALLY MUST BE INDEPENDENT ...and not try to prevent candidates that want to offer themselves as candidates...LET THE PEOPLE CHOOSE WHO THEY WANT AS THEIR MP OR ADUN...

Personally, I believe, it is time for some of these 'old' disqualifications need to be reviewed and removed. For one, one a person has served their prison sentence, or paid their fines, they really should be qualified immediately to offer themselves as candidates for Elections...

RM2000-01 fine should not disqualify people from contesting anymore...When, we achieved MERDEKA, RM2,000 was a serious fine...nowadays, most fines even for small offences, even traffic offences, can be much more than RM2,000-00 - so time to review and amend...

At the last Malaysian Bar AGM, I tabled a Motion, ...which, was ultimately not voted upon...I felt it was time that Malaysia seriously review all these 'disqualifications' - removing some(or many of them). LET THE PEOPLE CHOOSE WHO THEY WANT...

Unfortunately, none of the Opposition States, who had more that two third majority, tried to remove these 'disqualifications' in their State 'Constitution'...Remember, Federal Constitution(and laws) generally provide for disqualifications for MPs - not ADUNs.

My Motion, for your reading pleasure...I did not put the Motion to Vote for obviously more time was need to increase awareness...for it was a new issue...Maybe, next year, I may put the motion to vote...


1-          People should have the right to choose their own peoples’ representative, be it a Member of Parliament and/or State Legislative Assemblyperson (ADUN).

2-          Article 48 and 50 of the Federal Constitution deals with the disqualification of Members of Parliament, and the disqualification of candidature in a Parliamentary election.

3-          These disqualifications in law, deny peoples’ free choice of their Member of Parliament, as some are disqualified from even contesting in elections. Many of these disqualifications in law, has existed unquestioned for a very long time. As such, time has finally come to review and remove all(or some) of these disqualifications, that may be unjust and/or unreasonable at this time for Malaysia.

4-          In recent years, in Malaysia, we see several persons have been disqualified from continuing to be a peoples’ representative, or may even be denied the right to stand for upcoming elections.

5-          Lim Guan Eng(DAP), Anwar Ibrahim(PKR), P. Uthayakumar(HRP) and  Mat Yusoff Abd Ghani(UMNO) are some of the politicians that have all fallen victims of these disqualifications in the past.

6-          Others politicians that face the risk disqualification as an MP or disqualification in standing in  future elections  include Pandan MP Rafizi Ramli, Batu MP Tian Chua and Wong Tack(DAP).

7-          What is disturbing is that the crimes that some of these people are being (or were) convicted for are offences related to freedom of expression, freedom of opinion and even peaceful assembly. The draconian Sedition Act, which the Malaysian Bar and others have called for its abolition, has also been used. Persons who highlighted alleged crimes and wrongdoings also are being charged and convicted.

8-          It must be pointed out, that many others including human rights defenders and civil society, may also be similarly affected by such prosecution and convictions.

9-          The government of the day has much power and/or influence in determining who be charged in court and even who be pardoned. Prosecution has the power to decide on which cases to prosecute, and which not to. The concern is not just with regard to the current government, but any government in the future, who could use the powers they possess in the administration of justice against their political opponents and even human rights defenders.

10-       The time has come for a review of the existing grounds for disqualification that exist in our laws. Some of this will need to repealed, and some may have to be amended.

11-       Article 48 now disqualifies persons who have been convicted of ANY offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon. Article 48(3) states this period of disqualification   ceases at the end of the period of five years beginning with the date one was released from custody…’ or the date on which the fine was paid.

12-       There is a need to review whether we this disqualification should be limited to  offences of corruption, murder, robbery, money laundering, breach of trust, malfeasance, treason, rape and/or other serious offences. Now, the law says any offences, which could also mean traffic offences and even some other minor offences committed when promoting, defending and/or exercising human rights.

13-       In the United States, “indictment for or conviction of a felony offense is not a constitutional bar to be elected or re-elected a Member of Congress, other than a conviction for treasonous conduct after having taken an oath of office [...]The [disqualifications] to serve in Congress were intentionally kept at a minimum by the framers of the Constitution to allow the people broad discretion to send whom they wish to represent them...”

14-       In Finland, offences do not lead to ineligibility any more, since the amendment of the Criminal Code of 1995. Nor do they in the Czech Republic, Slovenia, Sweden
and Switzerland(since 2007)

15-       The provision about sentence of imprisonment ‘of not less than one year’ also need to be reviewed, and reasonably maybe should emulate what is practiced in Victoria, Australia which now only disqualifies persons sentenced to 5 years or more. In many jurisdictions, the disqualification only applies to when one is serving the sentence, and not after release.

16-       The fact that one has been fined, should really not disqualify the person anymore, after he/she has paid his/her fine.

17-       In many jurisdictions, once the sentence is served, the said person can immediately contest for elections. One may not contest for elections for additional number of years only for offences like treason.

18-       A person who has already served their prison sentence, whipped and/or paid their fine should really not be further discriminated as to his/her personal rights, which includes the right to stand for elections with the hope of being elected a Member of Parliament. He/she has paid for crimes committed, and to further discriminate thereafter is not just.

19-       It must be pointed out that the government of the day do have some influence also with regard to obtaining of pardons, to allow a person convicted, and disqualified from contesting for an additional 5 years after being released, to be free from such disqualifications and to contest immediately. Such power could be self-serving and abused, and as such should really be removed from our law.

20-       A person could become a bankrupt for various reasons, but how is it that a bankrupt cannot be a Member of Parliament, although bankruptcy may be a reasonable bar to the holding of an Executive Position as Prime Minister or a member of the Cabinet.

21-       The Federal Constitution contains these ‘disqualifications’ for a Member of Parliament, as State Constitution and law contain similar ‘disqualifications’ for State Legislative Assemblypersons. Both Federal law and State Law, including Constitution could any time be amended by the people, through the Parliament and/or State Legislative Assembly. Laws that have existed for long can always be changed to become more just and better.

22-       The Malaysian Bar was previously restricted by law from choosing young lawyers to lead and/or serve in the Bar Council, State Bar Committees and other Committees of the Bar, but driven by a commitment that we, the members of the Bar, must have the right and freedom to choose who we want as our leaders, we fought, and were successful in removing some disqualification in law.

23-       In a democracy, the people must always have the freedom and right to choose who they wish to represent them as Members of Parliament and/or peoples’ representatives. People will certainly consider all aspects, including pending and past allegations, charges, convictions and all matters of concern before choosing our people’s representative when we vote. There may be no more justification for laws disqualifying certain persons from even contesting save maybe age and the need to be a Malaysian citizen.

THEREFORE, it is hereby resolved that:

A.           That the Malaysian Bar calls for the right and freedom to choose and elect peoples’ representatives be restored fully to the people, and that all existing legal disqualifications that exist in law, that now even prevents an elected representative continuing to serve as Member of Parliament (MP) and State Legislative Assemblypersons(ADUN) or to stand for elections be forthwith reviewed, amended and/or repealed to enhance people’s choices of the their representatives.

B.           That the Malaysian Bar calls on the Malaysian people, State and Federal Government to do the necessary review, amendment and repeal of laws that now unjustly and/or discriminately disqualify persons the right to offer themselves as candidates in democratic elections, which affects people’s available choices of their representatives in Parliament.

C.           That the Bar Council be empowered to do all that is necessary to protect and promote democracy and the freedom of people to choose their own peoples’ representative, and/or to offer themselves as candidates in elections of peoples’ representatives.

Proposer – Charles Hector (BC/C/712)
Dated:- 7/3/2018

Tian Chua takes EC to court over nomination rejection

KUALA LUMPUR: PKR vice-president Tian Chua (pic) has filed a suit to reverse the rejection of his nomination to contest for the Batu parliamentary constituency.

The suit filed at the High Court here Monday (April 30) morning named election returning officer Anwar Md Zain and the Election Commission (EC) as respondents.

Anwar had rejected Chua's nomination last Saturday, stating that election rules disqualified him on account of a previous RM2,000 fine imposed by the courts.

Chua, who held the Batu parliamentary seat since 2008, sought a declaration that he was qualified to run for the seat in GE14, under Article 48(1)(e) of the Federal Constitution.

He also sought a declaration that he was entitled to contest and be nominated for the seat.

In a supplementary affidavit filed, Chua said he had no issue with an RM2,000 fine in GE13, nor had it impeded him from acting as an MP over the previous term.

Speaking to reporters in the court lobby, his counsel Ngeow Cheow Ying said they had not yet been assigned a High Court judge to hear the matter, but they were moving to have it heard urgently before polling day.

Asked if the matter would be rendered academic if otherwise, she said she would still seek her client's instructions if they should continue.

On April 28, Chua's nomination was rejected by Anwar, who said he was advised by the Election Commission (EC) to disqualify the nomination due to a RM2,000 fine imposed on Chua in a 2017 court case.

The sentence was in relation to his conviction over insulting the modesty of a police officer by using foul language four years ago.

The decision to disqualify Chua was made according to Section 7(1)(c) of the Elections (Conduct of Elections) Regulations 1981, read together with Article 48(1)(e) of the Federal Constitution.

Section 7(1) (c) gives any electorate or candidate in a constituency to object to a nomination paper if it is apparent from the contents of the nomination paper that the candidate is not capable of being elected as a member of the Dewan Rakyat or a State Legislative Assembly.

Article 48(1)(e) provides for the disqualification for membership of Parliament if the person has been convicted of an offence by a court of law and sentenced to imprisonment for a term of not less than one year, or to a fine of not less than RM2,000 and has not received a free pardon.

This comes despite the Shah Alam High Court's grounds of judgement that explicitly spelled out that Chua would only be disqualified if "the fine was RM2,001 and above, and not from RM2,000".

Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia had in 2011 also ruled that Chua would remain as Batu MP and that the RM2,000 fine would not automatically remove him from his role as MP.- Star, 30/4/2018

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