Re post #4 by ENDANGERED HORNHILL.

What I think is the case is this:-

1. I think the Justice Ghazali Cha has never intended Tian Chua to be disqualified. That is why he reduced his sentence to RM2000/- (borderline). If the judge had wanted to “fix” Tian Chua the judge could easily impose a fine of more than RM2000/- wjos to say he could not do that?

2. I think the Judge honestly believe, when he read article 48 of the Constitution, that the disqualification limit set at “not less than RM2000/-” in article 48 includes RM2000/- meaning Tian Chua would be disqualified only if the fine was RM2001 but not at RM2000!

3. In this I agree with the Judge Ghazali Cha.

4. What I did not know – but it has since come to my attention- is the existence of a 1975 case decided by Justice Chang Min Tat/. There Fan Yew Teng was fined 2000/- for sedition. He was disqualified by Justice Chang Min Tat from his Menglembu seat! The Court then interpreted article 48 wordings as meaning as setting in the disqualification at RM2000 fine itself.

5. I think the Fan Yew Teng’s case was wrongly decided. It flies against plain English!

6. Karpal Singh, who defended Fan Yew Teng, knew about the case and thats why until that 1975 case weres overruled it is still law which explains why Karpal opines (based on Fan Yew Teng’s precedent) Tian Chua would be disqualified.

7. Not knowing about that case – and agreeing with Justice Ghazali Cha that article 48 does not disqualify anyone fined RM2000/- I commented in last thread that Karpal was “politiking” by his view.

8. I have since retracted unreservedly my comment – it has been moderated and not published in spite of 3 attempts – since Karpal’s opinion is based on the law laid down in Fan Yew Teng’s case that I did not know before or better, and neither I suspect, was the case known to or brought to the attention of Justice Ghazali Cha by Tian Chua’s counsel. (Had it otherwise been the case, Judge Ghazali would have surely imposed a fine of less than RM2000/- just to escape the disqualification set in Fan Yew Teng’s case.) In that sense I agree with ENDANGERED HORNBILL that “the judge made an honest mistake”. He made an honest mistake of the law because it was not brought to his attention the law as laid down in 1975 by the Fan Yew Teng’s case.

9. However the case of Fan Yew Teng is, in my opinion, wrongly decided. It is bad law. (In that sense I agree with HJ Angus that the law as it stands now is an ass).

10. Now the confusion is that Tian Chua has paid the fine and arguably Justice Ghazali Cha, no matter that he truly intended not to disqualify Tian Chua, could not retract his decision especially when he reads article 48 and believes its plain language commences the disqualification at anything MORE than RM2000 and not RM2000 itself.

11. This being the case – if the EC & Speaker should decide to disqualify him based on 1975 Fan Yew Teng’s case – Tian Chua will have to appeal to higher courts to overrule the illogic and ultra legalistic, and in my opinion, untenable interpretation of article 48 of the Constitution laid down by Justice Chang Min Tat in that case 35 years ago.

///In delivering his judgment, Ghazali said: “A member of Parliament is the head of an area and should be a role model for the people.

“In this case, the appellant is a MP and it cannot be denied that we can have no special treatment due to his position. But to have a by-election would require a large amount of spending and it would affect the people, so I have decided on a punishment that would not affect so many people,” Ghazali told a packed courtroom./// – Judgment of Judge Ghazali Cha as reported by Teoh El Sen in FreeMalaysiaToday on 17th June.

If it is normal for judges to “increase” penalty or fine in certain circumstances where public interest requires a deterrent sentence, I see no reasdon by Judge Ghazali Cha could not for same reasons of public interest of avoiding a costly byelection arising from Tian Chua’s disqualification reduce his sentence from RM3000/- to RM2000/- fine.

I agree with the judge that RM2000/- does not disqualify Tian Chua under article 48 of the Federal Constitution. I believe so does Bar Council Chairman president, Ragunath Kesavan, who said that in “his professional view”…” the phrase ‘not less than’ means the threshold amount that would automatically disqualify Chua would be higher than RM2,000/-” – (Source The MalaysianInsider report by Debra Chong and Yow Hong Chieh, June 17, 2010 under caption “poser over Tian Chua’s status as MP”.

However renowned lawyer Karpal Singh and Dr Shad Saleem of Universiti Teknologi Mara take the other view – that RM2000/- is caught by the disqualification, a view supported by the 1975 legal precedent case of Fan Yew Teng who was fined for RM2000/- and held by Justice Chang Min Tat to have been disqualified as MP.

My personal view is that Justice Chang Min Tat’s decision in 1975 Fan Yew Teng case is wrongly decided.

Though it is law (based on precedent) it can be overruled on appeal to higher apex court for proper interpretation.