WHILE lawyers agreed that previous court rulings said only fines above RM2,000 can bar a lawmaker from office, they had differing opinions on the jurisdiction of the civil high court to hear an election case involving disqualification of a would-be candidate.

Lawyers were commenting on the case of PKR’s Batu incumbent Chua Tian Chang, who was disqualified as a candidate last Saturday on nomination day over a RM2,000 fine imposed on him in a 2017 case.

Chua had sought a declaration that he was entitled to be nominated but the Kuala Lumpur High Court today ruled that it had no jurisdiction on the validity of a returning officer’s (RO) decision to reject the nomination.

Instead, the judge ruled that Chua should file his suit by way of an election petition.

Malaysian Bar Council Human Rights committee co-chairman Andrew Khoo said judicial review had been opposed because the case raised was in the context of an election nomination.

“There is a separate court in which to raise such issues. But this court has to be specially convened, it won’t be convened till after the election is over.”

Lawyer Mohamed Haniff Khatri Abdulla, who is representing PKR candidate Dr S. Streram in another election dispute, said the civil courts have no jurisdiction over election matters, even if the decision was “very clearly wrong because justice will be done through the election court which can order a by-election immediately after the matter is decided”.

“To that extent, this court was correct in law,” he said, adding that all election-related issues, from rejected nominations to disputes over the results can only be challenged in an elections court.

An election petition will have to be filed within 21 days from the date of the results of GE14 are gazetted.

But Malaysian Bar constitutional law committee co-chairman Surendra Ananth said he disagreed with the judge’s decision that an election petition is the correct procedure to challenge the decision of the RO who disqualified Chua’s nomination.

“I respectfully think the judge might have got it wrong,” he said.

“All Tian Chua wanted was a declaration that he was entitled to be nominated. which is essentially a reiteration of the earlier High Court judgment,” Surendra said, referring to a 2010 decision by the Kuala Lumpur High Court that the RM2,000 fine to disqualify a member of parliament in Section 48(1)(e) of the federal constitution shall be RM2,001 and above.

“There is nothing which bars the high court from giving that declaration. (Whereas) election petitions are used by candidates or voters to challenge the results of an election. In this case, Tian Chua is not even a candidate,” Surendra said.

Another of Chua’s lawyers, Lim Wei Jiet, said the PKR vice-president was merely asking the court for declaration of “his future rights and legal status” as a lawmaker with a RM2,000 fine.

Lm said if there were to be a by-election in Batu and Chua were to contest, he would be “again confronted with this dark cloud and risks being disqualified yet again by the RO”.

“Which begs the question – where does he go now to obtain certainty of his status under Article 48 of the federal constitution, but to a court of law?”

Lim added that an election court had limited scope on cases as defined in the Election Offences Act, which did not include a situation such as Chua was facing. – May 4, 2018.