KUALA LUMPUR (Nov 12): A nine-member Federal Court bench in Putrajaya will on Dec 11 hear and decide whether the Sarawak state legislative assembly has the power to disqualify an elected state representative and whether a person who had acquired a foreign citizenship but renounced it before nomination day can stand elected.
These are among the seven questions of law posed to the highest court in the country, in the appeal by Sarawak state assembly speaker Datuk Amar Mohamad Asfia Awang Nassar and the Sarawak state assembly against Pujut assemblyman Dr Ting Tiong Choon, who is from DAP.
The highly charged case would also see the apex court decide whether it can interfere in the affairs of the legislature or whether such proceedings are justiciable.
Ting's lawyer Tan Kee Heng informed theedgemarkets.com of the hearing date, after receiving a fax from the Federal Court registrar yesterday.
"We are directed to file the written submissions and bundle of authorities by Nov 20," he said regarding the case.
The seven questions of law to be decided by the apex court are:
- whether the Sarawak state legislative assembly has the power under Article 19(1) of the Sarawak Constitution to make a decision on the continued membership of an elected member whenever a question is raised in the house as to whether that member is qualified for election to the house under Article 17(1)(g) of the state constitution
- whether the business or proceedings at the house but not limited to the Ministerial motion on May 12, 2017 is justiciable, in view of the provisions of Article 19(1) of the Sarawak Constitution read together with Article 72(1) of the Federal Constitution
- whether upon interpretation of Article 17(1)(g) of the Sarawak Constitution, a disqualification for election to the house resulting in voluntary acquisition of foreign citizenship and the exercise of the rights accorded to a foreign citizen in that country, could be removed and ceased in the absence of Article 17(3) or any Article of the state constitution for the removal or cessation of such disqualification
- whether there is any conflict between Article 17(1)(g) and Article 19(1) of the Sarawak Constitution and Article 118 of the Federal Constitution
- whether or not an election petition pursuant to Article 118 on the Federal Constitution is the only mode that can be utilised to challenge the appointment or election of a member of the house
- whether a Malaysian citizen who had acquired a foreign citizenship but renounced it before the nomination day is qualified to be nominated as a candidate for an election in light of Article 17(1)(g) of the Sarawak Constitution, and
- whether the Sarawak legislative assembly has the jurisdiction to decide on the disqualification of an elected member who had previously acquired a foreign citizenship though renounced it before nomination day. If the answer is in the affirmative, whether such decision of the house is justiciable in light of Article 19 of the state constitution.
Granted leave in July
The Federal Court in Kuching had in July 2019 granted leave or permission to Awang Asfia and the Sarawak state legislative assembly to challenge the High Court and Court of Appeal decision that overturned the house decision to disqualify Ting.
Awang Asfia and the state assembly had also named the Election Commission as respondents in the case besides Ting.
Ting won the seat in the 2016 state election after garnering 8,899 votes against Barisan Nasional's Hii King Chiong's 7,140 votes and two other independent candidates.
After winning the Pujut state seat on May 7, 2016, he was disqualified as a state representative on May 12, 2017, following a motion tabled by the Sarawak Minister for International Trade and E-Commerce and Second Minister for Finance Datuk Seri Wong Soon Koh, who is also Bawang Assan assemblyman.
He then filed an Originating Summons at the Kuching High Court on June 7, 2017 to challenge the state legislative assembly decision. On June 17, 2017, Kuching High Court judge Datuk Douglas Christo Primus Sikayun ruled against the state legislative assembly's decision to disqualify Ting as Pujut assemblyman, awarding RM100,000 damages to the plaintiff.
Douglas said the state legislative assembly has no express powers to deal with an election result and that it was not a competent body to decide constitutional issues.
On top of that, the Speaker did not afford Ting adequate time to defend himself, and also had not given the opportunity to Ting. The High Court judge even went on to say that 8,899 Pujut voters' interests should also be taken into consideration.
Awang Asfia and the state legislature appealed to the Court of Appeal, and the appellate court upheld the High Court decision in July last year, by a majority of two to one, resulting in the present appeal.