PETALING JAYA, 23 June 2010: Batu Member of Parliament Chua Tian Chang will keep his seat if the Election Commission (EC) refuses to declare it vacant, said constitutional lawyer Tommy Thomas.
This is despite Thomas’s view that Chua was disqualified as an MP when the High Court fined him RM2,000 for biting a police officer.
“It’s so clear that he’s disqualified. It’s a matter of plain English. I can’t see how to argue otherwise,” Thomas told The Nut Graph in a phone interview. “But if everyone including the EC keeps quiet, then nothing will happen.”
Thomas agreed that the EC’s inaction would render the Federal Constitution impotent since Article 48(1)(e) clearly states that a person is disqualified from being an MP if convicted and sentenced to a fine of not less than RM2,000.
“The EC can be brought to court for not upholding the constitution but only by someone with locus standi,” said Thomas. “This would definitely include Tian Chua and the government of Malaysia, who were parties in the criminal prosecution.”
When asked whether a Batu constituent could sue the EC for not calling a by-election, Thomas said this was “possible”. “Malaysia is more restrictive on who has locus standi, so it depends. But in other more mature democracies, a Batu voter would probably have locus to sue the EC. They would have an interest to ensure their MP doesn’t break the law.”
Parliament cannot interfere
Thomas stressed that Chua’s position as an MP was out of Parliament’s hands, disagreeing with views that a parliamentary vote could settle the issue.
“Tian Chua’s disqualification falls under Article 48(1)(e) of the constitution, which is related to court convictions,” Thomas said. He explained that according to Article 53(2), however, Parliament has no say over an MP’s position arising from a court conviction.
“In all other instances of disqualification such as being of unsound mind, Parliament decides. But when it comes to court convictions and sentences, only the court decides. Parliament has no business interfering.”
Thomas said this was to make clear the separation of powers between Parliament and the courts and to avoid any conflict between the two branches of government.
No by-election
Thomas speculated that Batu constituents wouldn’t be facing a by-election anytime soon.
“Batu has always been an opposition seat, it was [Gerakan co-founder Tan Sri Dr] Tan Chee Khoon’s seat for many years. The political reality is Umno doesn’t want to lose another by-election, particularly by a big margin,” said Thomas.
Thomas also postulated that a Batu by-election could pave the way for Datuk Zaid Ibrahim to be fielded as a candidate and win in the relatively urban seat.
Thomas said the legal issue could be cleared up if Chua filed an appeal.
Chua’s lawyer said on 22 June that Chua would be applying for leave next week to appeal against the court decision that he was guilty of biting a police officer. 
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Sean says
If TC keeps his seat this way, wouldn’t he be effectively muzzled in Parliament? An MP’s normal privilege in being able to say what he likes without fear of defamation suits wouldn’t be worth much if a victim were able to point out “but the law says you’re not actually an MP, doesn’t it?”. Isn’t that an obvious flaw in what is otherwise an abysmal plan?