Mohd Asfia (third left) in discussion with lawyers before the Federal Court hearing in Kuching.
KUCHING: The Federal Court sitting here has granted leave to the State Legislative Assembly (DUN), Speaker Datuk Amar Mohd Asfia Awang Nassar and out-going Second Finance Minister Dato Sri Wong Soon Koh to appeal the decision of the Court of Appeal and Kuching High Court to reinstate Dr Ting Tiong Choon as Pujut assemblyman following his disqualification as a member of the august House for having dual citizenship.
Legal counsels, Deputy State Attorney-General Safri Ali, Tan Sri Cecil Abraham and Shankar Ram Asnani, and George Lo for the three respective appellants, will soon file seven questions of law for the consideration of the apex court.
Yesterday, the three-member Federal Court bench led by Chief Judge of Sabah and Sarawak Datuk Seri Panglima David Wong Dak Wah, Justice Datuk Setia Mohd Zawawi Salleh and Justice Nallini Pathmanathan unanimously decided in favour of the appellants as the case was a constitutional issue of public importance.
Dr Ting (third left) with his lawyers and party members at the courthouse yesterday.
Dr Ting was disqualified as Pujut assemblyman by the DUN on May 12, 2017 following a motion tabled by Wong for allegedly having dual Malaysian-Australian citizenship and also twice being declared a bankrupt in Australia in 2012.
Dr Ting then filed an originating summons in the Kuching High Court on June 7, 2017 to challenge the DUN’s decision.
On June 17, 2017, High Court Judge Datuk Douglas Christo Primus Sikayun ruled against the DUN’s decision to disqualify Dr Ting as Pujut assemblyman and awarded him RM100,000.
Judge Douglas said the DUN has no express powers to deal with an election result and that it was not a competent body to decide constitutional issues.
He also ruled that Mohd Asfia did not afford Dr Ting adequate time or opportunity to defend himself, and that it was not right for Mohd Asfia to take on the role of prosecutor, saying the rule of natural justice had not been complied with and adhered to.
On July 13, 2018, the Court of Appeal in a two-to-one decision dismissed the appeals of the DUN, Mohd Asfia and Wong against the High Court’s decision to reinstate Dr Ting as Pujut assemblyman.
Meanwhile, in a press conference yesterday, Mohd Asfia said if the recent decision of the Court of Appeal was to stand, then the state assemblies and Parliament would face a crippling effect in enforcing certain crucial provisions.
Calling it a landmark case where the Federal Court has to deal with all issues once and for all, he said: “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.
Mohd Asfia opined that the constitution provision should be read in harmony with other constitution provisions to effectively forward the whole intent of Parliament.
He also said that the majority in the Court of Appeal and High Court failed to appreciate several undisputed facts which illustrated that there was no breach of the rules of natural justice and/or procedural fairness.
He stressed while the decision to boot Dr Ting from the DUN in 2017 was his, members of the august House voted 70-10 to dismiss Dr Ting after Wong filed his motion.
“No natural justice and procedural fairness were breached because Dr Ting and his state DAP chairman Chong Chieng Jen, who is also Kota Sentosa assemblyman, were given 50 minutes to speak against Wong’s motion and that, they were asked repeatedly to address the factual issues of Dr Ting’s Australian citizenship, the pledge of allegiance and the exercise by Dr Ting of his right as a citizen of Australia to vote in Australian elections,” he said.
When asked if the fact that Dr Ting had renounced his Australian citizenship prior to the state election in May 2016 would have any bearing on the case, Mohd Asfia said that will be one of the technicalities of an election which the Federal Court must also address.
In 2018, the Court of Appeal ruled that the DUN had no jurisdiction to disqualify Dr Ting as he acquired Australian citizenship, which he subsequently renounced, before he was elected in the May 2016 state election.
“The state assembly only has jurisdiction to determine the status of a member whose disqualification was incurred after his election. To go backwards to determine the status of a person before he was elected would amount to overreach by the state assembly, which in my view has no constitutional support in the state constitution,” Judge Abang Iskandar Abang Hashim, who chaired a three-member bench, was quoted as saying then.
