What is the role of the judiciary? Is it to interpret the law or deliver justice?

By admin-s Last updated May 7, 2018

Instead of providing a timeous and immediate remedy for Tian Chua, the court had passed the buck on to the election judge to hear the case after the conclusion of GE14. What he needs is an urgent and timeous solution to contest in the elections on May 9, 2018. The court ruling has left him in a limbo.

P Ramakrishnan

As expected, the High Court rejected Tian Chua’s originating summons seeking a declaration that he was qualified and could contest in GE14.

Discerning Malaysians are not shocked by this ruling – only extremely disappointed that the court did not address the substantive issues raised in this matter.

Justice Nordin Hassan cited Article 118 of the federal constitution where any challenge on the election results (my emphasis) should be by way of an election petition and the matter should be heard before an election judge. There is no merit or logic in this ruling.

Tian Chua was only seeking a declaration on his eligibility to contest in the election. He was not disputing the election results. One can only dispute the election results after the election had ended and the results declared – not before that! The election outcome will only be known any time after 5 pm on May 9, 2018.

It is disconcerting that the court had ignored an earlier High Court decision that Tian Chua was qualified to stand for election even after he had been fined RM2,000. Indeed, the court emphasized that only if Tian Chua was fined RM2,001 and above, would he have been disqualified.

On March 9, 2016, the Petaling Jaya Sessions Court fined him RM3,000 for this offence which was later reduced to RM2,000 by the High Court on March 2, 2018, thus clearing the way for him to contest in GE14.

The High Court’s grounds of judgment had clearly stated that Tian Chua would only be disqualified if “the fine was RM2,001 and above and not from RM2,000.”

“… I am satisfied … that the RM2,000 fine does not make the appellant automatically lose his qualification because in order for him to be disqualified, the fine would be RM2,001 and above and not from RM2,000 onwards,” the High Court judgment stated.

Citing Article 48(1)(e) of the Federal Constitution, the High Court said that this penalty imposed by the court will not give any implication in an election in the Batu constituency.

As we understand, this ruling obviously paves the way for Tian Chua to contest in the elections without any problem in the future.

But Justice Nordin Hassan had completely ignored this very important and landmark decision which would have come in handy in Tian Chua’s application for justice. We are concerned this precedent did not cut ice with Justice Nordin.

It must be noted that Tian Chua was able to contest in GE13 although he had been fined RM2,000 in 2011. His nomination papers were not rejected by the Returning Officer then.

When the High Court reduced Tian Chua’s fine from RM3,000 to RM2,000 on March 2, 2018, the government had also accepted this decision and did not appeal against this ruling. The Attorney-General Chambers did not oppose this decision.

If the RM2,000 fine imposed on him on March 2, 2018 had disqualified him on nomination day, April 28, 2018 from standing for election – in spite of the court’s ruling affirming his eligibility – how come he continued to be a Member of Parliament following the High Court decision right up to the time when Parliament was dissolved on April 7, 2018?

How come he was allowed to participate in parliamentary proceedings in spite of being fined RM2,000? How come the Speaker of Parliament did not disqualify him and throw him out of the august House?

Perhaps, the Speaker was guided by his earlier decision in 2011. The Dewan Rakyat Speaker, Tan Sri Pandikar Amin Mulia, had also made a ruling that Tian Chua remains as Batu MP and the RM2,000 fine does not automatically remove him from his role as MP.

With the Returning Officer’s decision to reject Tian Chua’s nomination papers, shouldn’t we ask whether the parliamentary proceedings were illegal with Tian Chua’s participation?

The burning question is whether the High Court has the inherent right to right a wrong; if so, should it abdicate this responsibility? It is distressing when the court confines its function strictly to rules in spite of glaring injustice staring at its face, confining itself to the letter of the law and ignoring the spirit of the law.

This is all the more distressing when we are reminded of the age-old saying that “the letter killeth, but the spirit giveth life” to the law. So, why focus solely on the letter and ignore the spirit?

Umno Petition

We saw how the High Court dismissed another petition from 16 Umno members who went to court to question the right of Umno to exist. It was very clear that after failing to follow its constitution and failing to hold its elections as required within the stipulated time frame, Umno had ipso facto ceased to exist. By that very fact, it is no longer a legal entity. It should have been declared an illegal organization. But that did not happen. Why?

These 16 Umno members were subsequently expelled on the footing that they had taken the party to court, an action that is forbidden by the constitution and would result in an automatic expulsion of those concerned.

But when the party had no legal basis to exist and function, how could the “unlawful” party expel these 16 members? It’s beyond belief that the court simply ignored this situation and dismissed the petition of the 16 because they had no locus standi or legal standing, it seems!

Where do aggrieved persons go to for justice when the court is not moved by the glaring wrong when it is brought to its attention?

Segamat Situation

We saw this bewildering abdication of responsibility by the court in the case of an electoral roll with names of dubious voters or transference of voters to parliamentary constituencies without justification.

The Election Commission had gazetted the names of 949 army personnel and their spouses as voters for the Segamat parliamentary seat without any valid reason. The army camp under construction in Segamat has not been completed and the quarters for the army personnel is not ready and will not be available for occupation for months to come. At this point in time they are not residing in those army quarters to be considered as Segamat voters.

So why have they been relocated to Segamat? It is believed that this move was made allegedly to save the skin of MIC president Dr S. Subramaniam who won this constituency in GE13 by a mere 1,217-vote majority.

The petition brought to court by the 48 voters in Segamat challenging this EC decision was dismissed on the grounds that once the names were gazetted in the electoral roll, the decision can no longer be questioned in court. A decision could be patently wrong but it could not be challenged because the names had been gazetted. This is ridiculous!

Wangsa Maju Challenge

Again in the case of Wangsa Maju constituency a PKR branch leader failed to obtain leave at the High Court in Kuala Lumpur to challenge the alleged presence of some 7,000 dubious voters which led to a sudden rise of voters in the area. Similarly, the court ruled that an electoral roll once gazetted cannot be challenged in court under Section 9A of the Election Act 1958.

Any fraudulent act seemingly could be committed which could put the Opposition at a disadvantage but that act cannot be questioned or challenged because this wrongdoing is apparently protected by law!

This is an intolerable situation that renders concerned Malaysians hapless and powerless. Under the circumstance where do Malaysians turn to for justice? The present system has been devised to deny justice when a wrong is challenged to rectify it. We cannot live under this hopeless situation.

The only solution to get rid of this biased legislation is to change the government. Under the Barisan Nasional, there is no remedy for the above grievances.

Malaysians as a nation must turn up in large numbers to cast their votes on May 9, 2018. We must take a concerted stand to change the government for a better future and put a stop to deliberate instances of injustice and ensure that the originally named Palace of Justice or Istana Keadilan is restored instead of the present name of Istana Kehakiman to emphasise the justice that Malaysians cry out for.