THERE will be no by-election for the Pujut state seat after the Kuching High Court today overturned the disqualification of DAP’s Dr Ting Tiong Choon as member of the Sarawak state assembly.

The High Court decision was fast-forwarded today as nomination day of the by-election, which was triggered following Dr Ting’s disqualification on May 12, would have to be by next Tuesday.

Dr Ting was disqualified by the state assembly for having acquired Australian citizenship and had exercised the rights of an Australian citizen by registering as a voter with the Australian Electoral Commission, in violation of Article 17(1)(g) of the Sarawak Constitution

The Kuching High Court today overturned the Sarawak assembly’s May 12 decision on the grounds that the principle of natural justice had not been observed and, therefore, Dr Ting was not given a fair hearing.

The court also ruled the Pujut seat was not vacant, which means the by-election that had been called to elect a new representative would be cancelled.

Justice Douglas Cristo Primus Sikayun in his ruling today said Speaker Mohamad Asfia Awang Nassar whom Dr Ting named as the first defendant, had acted unconstitutionally and “acted beyond his powers” in the proceeding in the assembly.

Sikayun also agreed with Dr Ting’s counsels’ argument that the state assembly was not a competent body to hear the question of Dr Ting’s Australian citizenship.

Dr Ting argued that if the legislature wanted to disqualify him based on him purportedly acquiring Australian citizenship, the matter should have been referred to another competent body.

The 51-year-old medical doctor from the small riverine town of Marudi was disqualified after the Sarawak legislature, where more than two-thirds of its members are from the ruling Barisan Nasional coalition, voted 70 to 10 in favour of a motion tabled by Minister for International Trade and E-Commerce Wong Soon Koh to boot him out for allegedly breaching the Sarawak Constitution.

Article 17(1)(g) of the Sarawak Constitution states that “a person is disqualified from being elected as an elected member of Dewan Undangan Negeri (state legislative assembly) if he has voluntarily acquired citizenship of or exercised rights of citizenship in and has made declaration of allegiance to any country outside the federation”. – June 17, 2017.

In submissions earlier, Dr Ting’s legal team had argued that BN had tried to circumvent the Election Court by taking a polls dispute dating back to the last state election to the state assembly.

This was in reference to BN direct candidate, Hii King Chiong, who lost to Dr Ting in the contest for the Pujut seat in last year’s state election. Hii had failed to disqualify Dr Ting at the Election Court on technical grounds last year.

Sikayun said the Election Court, as spelt out in the Federal Constitution, was the body to exclusively hear an election petition and not the state assembly.

He said there were no provisions in the federal or state constitutions that gave the state assembly the power to hear election disputes, and hearing them was tantamount to usurping the powers of the Election Court.

“The law does not allow for a second bite (at the case). The proper forum must still be the court not the Dewan.”

On the failure of the speaker to properly apply the principle of natural justice, Sikayun said Asfia failed to give Dr Ting reasonable time to prepare his defence.

Asfia had refused to stand down the assembly when requested by Tanjung Batu assemblyman Chiew Chiu Sing.

He said Dr Ting would have needed time to discuss the issue of citizenship in depth and assemble his facts and documents for a proper defence.

The judge also questioned the role and conduct of Asfia in the disqualification proceedings.

He said from recording of the hansard, the speaker “had taken the role of a prosecutor” which “unwittingly revealed his impartiality”.

“The speaker had descended into the area of debate.

“He should know his limits.”

Sikayun said as the speaker was the highest authority in the assembly, members look to him for guidance.

He said by giving a wrong interpretation of the law, Asfia had mislead the assembly, and the judge sided with Dr Ting’s counsels’ earlier submission that the speaker’s interpretation of Articles 23(1) and 24(1) of the Federal Constitution on citizenship was wrong.

Asfia had said during the proceeding in the assembly that under Article 24(1), Dr Ting would lose his Malaysian citizenship automatically “the moment you acquire an Australian citizenship”.

Article 24 (1) states: “If the Federal Government is satisfied that any citizen has acquired by registration naturalization or other voluntarily and formal act the citizenship of any country outside the federation, the Federal Government may, by order, deprive that person of his citizenship.”

Article 23 (1) stated that any renunciation of citizenship must be registered in Malaysia, which Ting never did, Justice Sikayun said.

The court also awarded RM100,000 in costs Dr Ting.

Asfia’s counsel, Shanker Ram notified the court that he had been instructed to appeal the decision.

Ram’s application for a stay of execution was denied on the ground that if it had been given, the by-election would go ahead and it would create more problems later.

The nomination of candidates for the by-election was slated for Tuesday with polling slated for July 4.

Dr Ting won the predominantly Chinese Pujut seat in a four-cornered fight with a majority of 1,759 votes.

He had polled 8,899 votes, or 52.57% of the votes, to see off BN’s Hii, who polled 7,140 votes.

The other two candidates, Jofri Jaraiee of PAS, polled 513 votes, while independent Fong Pau Teck, garnered 357 votes.

Hii filed an election petition in the Election Court in Miri on June 16 last year to declare the candidacy of Dr Ting was null and void on grounds that he was an Australian citizen at the time of the election.

The court after hearing preliminary objections on October 15 dismissed the petition on the grounds that Hii paid the RM10,000 security deposit with a cheque instead of cash, as required by law, and he failed to file three copies of the petition to the court.

Justice Ravinthran Paramaguru had awarded costs of RM80,000 to Dr Ting. – June 17, 2017.