THE Federal Court has granted the Sarawak assembly speaker, second finance minister and state legislative assembly their application for leave to appeal the Court of Appeal’s decision to uphold a high court decision not to disqualify Pujut assemblyman Ting Tiong Choon over his alleged bankruptcy and Australian citizenship.

The apex court, in a sitting in Kuching, granted the application after speaker Mohd Asfia Awang Nasser, Wong Soon Koh – who moved the ministerial motion to disqualify Ting – and the legislature gave 19 grounds why they should be heard.

Asfia, in a media conference at his office today, said one of the questions of law for consideration in the application was whether the proceedings of the state legislature – including but not limited to the ministerial motion of May 12, 2017 – is justifiable in view of the provisions of inter alia Article 19(1) of the Sarawak constitution, read with Article 72(1) of the federal constitution.

Another key question which the three applicants want the apex court to decide was whether or not the state assembly has the jurisdiction and/or constitutional authority to decide or determine the question whether or not a member of the assembly is qualified to be appointed or elected in view of the provisions of Articles 17(1)(g) and 19(1) of the state constitution read with Article 72(1) of the federal constitution. 

Ting, a DAP lawmaker, was disqualified by fellow lawmakers in 2017 on the grounds that he had taken up Australian citizenship and was declared a bankrupt. 

Asfia said he believed that the high court judge had also erred in law in finding that the alleged denial to give adequate time to Ting to prepare his defence in the assembly had led to a failure to observe the rules of natural justice.

“A proper defence, I would envisage, involves an explanation of what amounts to dual citizenship, an explanation on how citizenship is lost, a discussion on Articles 24 and 27, and whether the Dewan (state assembly) is a competent forum.” 

He is also of the opinion that the high court judge further erred in law when he held that “if the Dewan is minded to debate the motion under Article 19(1) of the state constitution”, the assembly should have referred the matter to a select committee of enquiry, which would have members who are experts in their own respective field on such matters such as insanity, criminal convictions, bankruptcy or on laws related to citizenship.

The judge had ruled that once that select committee comes up with a report and a finding, that report could be debated further for a decision by the assembly.

The decision to refer the matter to the select committee was not taken.

Asfia said the judge’s conclusion is “devoid of merit and must not be allowed to stand” for six reasons.

Among them is the high court judge’s reading into Article 19(1) of the Sarawak constitution of “a condition that is not there” – the need to form a “select committee of enquiry”.

“Lastly, it is equally important to bear in mind that a DUN member must not and should not be dishonest with the DUN on points of facts.

“That is why if one reads the Hansard, one will find that in the first respondent’s (Ting’s) address to the DUN, not once did he reply to the points of facts.

“Was he an Australian citizen? Did he pledge allegiance to Australia?

“Did he vote in Australia?” 

Asfia added that the edifice of parliamentary democracy is constructed on the substratum of the doctrine of separation of powers between the executive, legislative and judiciary. 

“If you obliterate the doctrine of separation of powers, the entire structure of parliamentary democracy will crumble. 

“Therefore, the conclusion of the high court cannot and should not be allowed to stand,” he said.

The Court of Appeal was split 2-1 in its decision in July last year to dismiss the appeal by Asfia, Wong and the assembly against the June 17, 2017 high court decision that the assembly had acted beyond its powers to disqualify Ting as an assemblyman.

Ting, a medical doctor, won the predominantly Chinese seat of Pujut in a four-cornered fight.

He polled 8,899 votes to see off his nearest rival, Barisan Nasional direct candidate Hii King Chiong, who polled 7,140 votes.

The other two candidates, Jofri Jaraiee of PAS, who polled 513 votes, and independent Fong Pau Teck, who garnered 357 votes, both lost their deposits. – July 25, 2019.