Is the role of the judiciary to interpret the law – or to deliver justice?

1
no views

We must take a concerted stand to change the government for a better future and put a stop to deliberate instances of injustice, says P Ramakrishnan.

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

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. The merit or logic in this ruling is difficult to fathom.

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 5pm on 9 May 2018.

Instead of providing a sufficiently early or immediate remedy for Tian Chua, the court passed the buck to the election judge to hear the case after the conclusion of the general election. What Tian Chua needed was an urgent solution to contest in the election on 9 May. The court ruling has left him in a limbo.

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

On 9 March 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 2 March 2018, thus clearing the way for him to contest in this general election.

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.

READ MORE:  Great strides in electoral reform - but risk of total reverse remains

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

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

But Justice Nordin Hassan completely ignored this 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 the 2013 general election 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 2 March 2018, the government also accepted this decision and did not appeal against the ruling. The Attorney General’s Chambers did not oppose this decision.

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

Why was he allowed to participate in parliamentary proceedings despite being fined RM2,000?
Why didn’t the speaker of Parliament disqualify him and throw him out of the august House?

Perhaps, the speaker was guided by his earlier decision in 2011. Dewan Rakyat Speaker Pandikar Amin Mulia had also made a ruling that Tian Chua remained as Batu MP and the RM2,000 fine did 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 despite the glaring injustice staring at its face, confining itself to the letter of the law and ignoring the spirit of the law.

READ MORE:  Singapore: After watershed election, time for PAP to take stock

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 obvious 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 was no longer a legal entity. It should have been declared an illegal organisation. But that did not happen. Why?

These 16 Umno members were subsequently expelled on the grounds that they had taken the party to court, an action that is forbidden by the party constitution and would result in the 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 is hard to understand how 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 individuals 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 the transfer of voters to parliamentary constituencies without justification.

The Electoral 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 were not ready and will not be available for occupation for months to come. At this point, they are not residing in those army quarters to be considered as Segamat voters.

READ MORE:  Reclaiming power from political parties

So why have they been relocated to Segamat? It is believed that this move was made allegedly to save the skin of MIC president S Subramaniam, who won this constituency in the 2013 general election by a mere 1,217-vote majority.

The petition brought to court by the 48 voters in Segamat challenging this Electoral Commission decision was dismissed on the grounds that once the names were gazetted in the electoral roll, the decision could 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 the 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 9 May 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.

Thanks for dropping by! The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

Our voluntary writers work hard to keep these articles free for all to read. But we do need funds to support our struggle for Justice, Freedom and Solidarity. To maintain our editorial independence, we do not carry any advertisements; nor do we accept funding from dubious sources. If everyone reading this was to make a donation, our fundraising target for the year would be achieved within a week. So please consider making a donation to Persatuan Aliran Kesedaran Negara, CIMB Bank account number 8004240948.
Subscribe
Notify of
guest
1 Comment
Inline Feedbacks
View all comments
Nair
Nair
8 May 2018 4.45pm

What a shamble.