MM Online - For Tian Chua, lawyers say time is of the essence (extracts):
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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.
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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. [...]
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As reported by MM Online, 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.
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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. [...]
I tend to support the legal advice because succeeding in an appeal after the election and frustrating the already conducted election in Kepong will become very messy. Yes, obtain the mandamus as a means to participate in GE14 rather than a subsequent by-election.
Tian Chua's case stands strongly in his favour on two counts, namely:
(a) the High Court’s in fining him RM2000 had explicitly explained the amount was precisely chosen to avoid affecting his eligibility to run for and hold office, and
(b) a case of stare decisis, in which Tian Chua was previously fined RM2000 but which permitted him to continue his status as a MP for Kepong.
At that time Karpal Singh (then alive) had stated that RM2000 disqualified Tian Chua from being MP for kepong, but the court had then ruled otherwise, much to the bemusement of Karpal.
The problem lies in the statement of the Federal Constitution that a candidate is disqualified if he has been fined “not less than RM2,000”.
As reported by MM Online, 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.
But my argument is the earlier case provided a legal precedent (stare decisis), so it doesn't matter now about the legality of the matter being not fully established. Actually it has been established which is why we have a stare decisis.
Remember the f**king shameful highway robbery of the notorious Adorna precedent, which was law for nine disgraceful years until (thank goodness) Chief Justice Tun Zaki Azmi overturned it on 21 Jan 2010 in the case of Tan Ying Hong v Tan Sian San and two others with words describing that earlier notorious precedent as an obvious and blatant error?
