DAP lawyers instructed to take legal proceedings to stay or restrain the Elections Commission from holding Menglembu parliamentary by-election

DAP lawyers instructed to take legal proceedings to stay or restrain the Elections Commission from holding Menglembu parliamentary by-election

The writ of election issued by the Election Commission for the holding of a Menglembu Parliamentary by-election is improper, illegal, unconstitutional and unparliamentary.

Although Sdr. Fan Yew Tong has been convicted of a sedition charge in the High Court, he has given notice of appeal to the Federal Court, from where there is a further avenue of appeal to the Privy Council.

It is unfair and unjust for the Elections Commission to issue a writ of by-election when the whole process of appeal has not yet been completed, for this tantamounts to the Elections Commission taking a political stand that Sdr. Fan will not win either at the Federal Court or Privy Council appeal stage.

Should Sdr. Fan win in his appeal either at the Federal Court or Privy Council appeal level, how is Sdr. Fan to be restored to his parliamentary seat of Menglembu, should a by-election be held now causing a new member to be elected? Surely, the Elections Commission are run by intelligent men, who can foresee such a absurdity being created. No procedure should create injustice, either to Sdr. Fan, or to the new member, and this can only be done by waiting until the completion of the entire appeal process.

When Sdr. Fan Yew Tong was convicted on the same sedition charge in 1971 in the High Court, he was suspended from the House but no by-election was held. Subsequently, Sdr. Fan Yew Teng appealed and won at the Federal Court and the Privy Council, and was restores back his Parliamentary seat of Kampar.

Why did the Election Commission ignore this precedent set by itself in 1971, and choose deliberately to disqualify Sdr. Fan Yew Teng this time, when he is still appealing against his conviction. One cannot help but think that the Election Commission is in this case moved by political considerations and motives, which it should not have.

Furthermore, the writ of election in Menglembu and the purported disqualification of Sdr. Fan Yew Teng when his appeal process is still in motion is against the spirit and letter of the Malaysian Constitution.

Clause 53 of the Malaysian Constitution reads:

“If any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final:

“Provided that this Article shall not be taken to prevent the practice of the House postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification).”

It is clear therefore that where the disqualification of a Member of the Parliament is concerned, only the Parliament can decide on it. But in the case of Sdr. Fan Yew Teng’s case, Parliament has not met to decide that Sdr. Fan is disqualified, and his disqualification and the election writ is doubly defective and improper.

According to the writ of election issued by the acting Secretary of the Election Commission, Encik Mohamed Zam bin Abdul Wahab, the Election Commission issued the writ following receipt of a notification from the Setiausaha of Dewan Rakyat of a vacancy in Menglembu.

As the Dewan Rakyat has not met, as required by Article 53 of the Constitution to determine the question of the disqualification of Sdr. Fan Yew Teng, the action by the “Setiausaha of Dewan Rakyat and the Elections Commission is a usurpation of the sovereign powers of Parliament, and must be condemned and resisted.

I am writing to the Prime Minister drawing his attention to Clause 53 and the irregularity of the whole action by the Election Commission in issuing a write of by-election, asking him to stay the Election Commission from proceeding the by-election until the completion of the whole appeal process so as not to prejudge the sedition case of Sdr. Fan Yew Teng. I am also drawing to the Prime Minister’s attention to the usurpation of the powers of Parliament as laid down in Clause 53, and requesting the summoning of a emergency session of Parliament by before February 27 to ‘purge’ away this usurpation, so that Parliament can itself take a decision on this question as provided by Clause 53. I will also seek a meeting with the Speaker of the House, Tan Sri Nik Kamil.

Meanwhile, if the Election Commission proceed with the by-election, the party lawyers have been instructed to initiate legal proceedings to stay or restrain it from holding the Menglembu by-election on February 27.

This is a test case of whether the government will allow fair play in the political and legal process, to allow Sdr. Fan Yew Teng to complete and exercise full appeal rights, or whether an Opposition Member of Parliament will in effect be denied his legal rights to appeal against a conviction, which will be the case if he is now ejected from his seat.