Special Report: Should lawmakers enjoy legal immunity?

In Malaysia, once an elected member of MP was charged, found guilty and sentenced to not less than a year’s jail, or a fine of RM2,000 (US$615), they will lose their qualification as a parliamentarian.

In June 2010, at least 18 opposition lawmakers were under police investigation due to their political activities including participating in assembly and uttering ‘seditious’ statements. This ‘Sword of Damocles’ was over their their heads.

In this two-part series, I looked into the issue of legal immunity for elected representatives – should they be disqualified if they are sentenced due  to actions that voice out people’s concern or fight for more democratic space? Is this provision making our representatives more conservative and calculative when carrying out their responsibilities? How are other countries deal with this issue?

The original story was published here and  here (paywall).

Part I: Should lawmakers enjoy legal immunity?

1:56PM Jun 24, 2010

By Kuek Ser Kuang Keng

SPECIAL REPORT Besides the issue of whether PKR strategist Tian Chua should remain as Batu MP due to the RM2,000 fine imposed by the High Court, the criminal case raised a bigger question – should an elected representative be disqualified after being sentenced to a fine of a certain amount or a jail term irrespective of the offence?

What more when the lawmaker is sentenced due to an offence that is linked with voicing out the people’s concerns or fighting for more democratic space?

Chua’s case falls squarely into this category.

Revisiting Tian Chua’s case

NONEChua (right), who was then yet to be elected as a parliamentarian, participated in a peaceful assembly on Dec 12, 2007 organised by election watchdog coalition Bersih to protest the constitutional amendment to extend the tenure of the Election Commission (EC) chairperson, which the coalition claimed would enable the allegedly biased chairperson Abdul Rashid Abdul Rahman to conduct the next general election.

He was trying to enter the Parliament compound in a car to submit a memorandum to the lawmakers when he was forcefully pulled out from the vehicle by policemen and a scuffle broke out between the two parties.

Police then arrested Chua and charged him under Section 332 of the Penal Code (voluntarily causing hurt) for allegedly biting the arm of a policeman during the scuffle.

He was initially sentenced to six months in jail and a fine of RM3,000, but this was later reduced by the Kuala Lumpur High Court to RM2,000 or two months’ jail in default.

RM2,000 fine is outdated

Article 48(1) of the Federal Constitution stipulates that a member of parliament is disqualified if sentenced by any court to a fine of “not less than RM2,000”.

NONEAlthough 53 years of inflation has increased the prices of goods and services a few times higher, the RM2,000 ceiling fine has not changed since independence.

DAP supremo Lim Kit Siang (left) had suggested increasing the ceiling fine to RM20,000 considering the inflation factor.

This view was shared by former Bar Council president Yeo Yang Poh ,who was of the view that the RM2,000 is way too low and outdated.

“Nowadays even a traffic offence fine can exceed RM2,000,” said Yeo when contacted by Malaysiakini recently.

Fear of losing seat

Former Human Rights Society (Hakam) deputy president Yang Pei Keng added that Article 48(1) is too harsh to the extent that it would hinder representatives from speaking up for the rakyat due to fear of losing his or her seat.

Soon after Chua’s sentence was announced, DAP chairperson Karpal Singh openly reminded Pakatan Rakyat MPs to avoid participating in illegal assemblies as the offence carries a minimum fine of RM2,000.

Commenting on Karpal’s statement, Yang pointed out that the definition of illegal assembly lies completely with the government and the enforcement agencies fail to carry out their duty fairly towards opposition and ruling politicians. This is further compounded by the lopsided judiciary system.

“All these factors cause Article 48(1) to be very detrimental to the opposition,” said the veteran lawyer in a phone interview recently.

yeo yang poh bar council interview 161006 talkYeo (right) described the disqualification of an MP for participating in an illegal assembly as “ridiculous”, and the Sedition Act 1948 that is frequently used to stifle opposition as a “16th century law” that should not exist in a modern nation.

Since February this year, there are at least 18 Pakatan representatives under police investigation for various offences including illegal assembly and sedition.

Although BN lawmakers also attended public rallies regarded by police as illegal such as the anti-Israel protest on Jun 4 spearheaded by Umno Youth Chief Khairy Jamaluddin, no action was taken against them.

Disqualification based on offence

On the issue of protecting lawmakers’ rights in discharging their duty, Yeo suggested that the disqualification should depend on the nature of the offence.

“The offence should be related to certain qualities of the MP that we cannot tolerate such as honesty,” said Yeo, citing criminal breach of trust as an example.
“Setting a ceiling fine is a wrong approach… the law needs to be changed, not on the ceiling fine but the nature of offence. Peaceful assembly should not be included.”

azlanHowever Chua’s case reflects another trend where the lawmakers are charged for other offences such as voluntarily causing hurt although the nature of the offence is illegal assembly, for which it is harder to obtain a conviction.

If we refer to the experience of another former British colony – Hong Kong, though the public has broader rights regarding peaceful assembly, protestors are usually charged with attacking the police when there is a scuffle with the authorities. Critics view this as an approach to smear the protestors using a legal loophole.

To maximise the protection of elected representatives, Yeo further proposed that the new law replacing Article 48(1) should list out serious offences that will disqualify lawmakers such as murder, kidnapping and fraud and exclude all other offences.

“If the Parliament later thinks they need to include other offences, then they will amend the law again to include the offences.”

Taiwan and Philippines provide the solution?

Asked if Malaysia should emulate Taiwan and the Philippine where lawmakers enjoy immunity during their tenure, Yeo and Yang had different stands.

yang pei kengYang (left) gave a thumbs-up for the immunity because it could allow elected representatives to discharge their duty more effectively.

“This practice by Taiwan is more democratic. It takes into account that lawmakers are elected by the people and they should not be oppressed during their tenure,” Yang said.

However, Yeo was of the contrary view as it would still be open for abuse.”It is not the solution.”

He stressed that every law can be a tool for good or to be abused, hence it is not enough to have a good legal system without a strong justice system.

According to him, a strong justice system include good law, a democratic Parliament, an independent judiciary and unbiased enforcement agencies.

To him, the solution should come in a package that involves all institutions instead of amending a particular law.

“A justice system can be strong if only all these factors are strong. Unfortunately Malaysia is still weak in many departments. There is still a long way to go,” he concluded.


Part II: Sword of Damocles over opposition MPs

12:39PM Jun 25, 2010

By Kuek Ser Kuang Keng

SPECIAL REPORT PKR Batu MP Tian Chua is still in his seat, but whether his case will cast a chill on his colleagues, resulting in them becoming more conservative when fighting for democratic space and people’s rights, is a question everybody is asking.

Chua was recently fined RM2,000 for intentionally causing injury to a police constable on duty, but he is appealing the case. His lawyer, Ranjit Singh, says the appeal is sufficient to act as a stay against Chua’s possible disqualification until the matter is disposed of by the court.

Currently, there are at least 18 Pakatan elected representatives under police investigation for various alleged offences, including illegal assembly and sedition.

Should they be found guilty and sentenced to not less than a year’s jail, or a fine of RM2,000, they will lose their seat, according to Article 48(1) of the Federal Constitution.

Keeping the opposition in line

Many opposition elected representatives described the article, which had not been amended since independence, as a Sword of Damocles over them.

bershi 1blackmalaysia pc 050509 sivarasa rasiahFor PKR vice-president R Sivarasa (left), who is still being investigated for illegal assembly and sedition, the article is nothing more than a political weapon the BN uses against the opposition lawmakers.

“In other countries, MPs will not lose their seat due to offences of a political nature. Disqualifying MPs because they speak up for people is not tolerated in a democratic country,” said the Subang MP when contacted byMalaysiakini.

Asked about DAP chairperson Karpal Singh’s reminder to Pakatan Rakyat MPs to avoid participating in illegal assemblies as the offence carries a minimum fine of RM2,000, Sivarasa said: “The intended effect of the article is to make MPs practise self-censorship, forcing us to bite our tongue when we want to say something, and stand away from the rakyat.”

Calculating risks

He conceded that he while he was mindful of the article when taking action that might be construed as breaking the law, his attitude was: “I try not to bother about it”.

DAP Rasah MP Anthony Loke shares the same view that opposition lawmakers sometimes need to take calculated risks when taking any action.

“Of course we need to know our limits and whether what we are doing is really important… we have to know what the objective of the action is and be aware of the situation.

“But if it will help the rakyat, then we should do it,” said Loke in a phone interview with Malaysiakini.

Political career, perks on the line

The stakes are high for lawmakers if they fall foul of the article, as not only they will lose their salaries and perks, their pensions will be forfeited as well.

Former lawmakers will also lose their pension if they exceed the maximum sentence, even though they have finished their tenure.

Furthermore, they will be deprived of political rights for five years after serving their sentence – they cannot contest in elections or assume posts in political parties.

Many politicians see the five-year ban as the death knell for their political careers because they would miss two general elections and party polls as well.

This has happened to opposition MPs who have been rising fast in national politics.

NONEThe famous cases include Fan Yew Teng, Lim Guan Eng and Wee Choo Keong. All three lost their seats due to Article 48(1).

However both Sivarasa and Loke (right) are confident that Pakatan representatives will not be affected by Chua’s case.

“Our track record speaks for itself. If we pull back, 80 or 90 percent of our actions would not have been done,” Sivarasa said.

For Loke, it was “part and parcel of Malaysian opposition politics”.

Nevertheless, Sivarasa agrees that abolishing Article 48 and other repressive laws, such as the Police Act and the Sedition Act, will establish more freedom for lawmakers.

Less risk for BN after three years

Another issue that has drawn the attention of some quarters is whether the cases of the 18 Pakatan representatives will drag on till after April 28 next year.

According to election laws, a by-election would only be called if a seat is declared vacant three years after the swearing in of a lawmaker. For the current Parliament, the cut-off date is April 28 , 2011.

Some political observers speculate that Chua was let off the hook due to BN’s fear of facing a by-election in Batu, which PKR won in last the general election with a 9,455 majority.

There is little doubt the BN qwill benefit if opposition lawmakers are charged and sentenced after the three-year period as BN will be able to reduce the opposition in Parliament without much worry.

“The BN can then recapture the two-thirds majority and build up momentum to face the next general election,” commented a political observer who requested anonymity.

pas supporters club launch 160207 n gobalakrishnanAfter Chua, the next case will be that of PKR Padang Serai parliamentarian N Gobalakrishnan (left).

He was found guilty of obstructing the police in an incident eight years ago and sentenced to a fine of RM3,000 or a six-month jail term.

His appeal is still pending.

Besides the opposition, legal experts also agreed that Article 48(1) needed amending.

“From the perspective of the rakyat, Article 48(1) is too harsh, and puts the opposition in a difficult position.

“I don’t know whether (these cases) are coincidental or deliberately (done)… it appears to be a trend (that Article 48 is being abused to oppress the opposition),” commented Yeo Yang Poh, former Bar Council president.

Previous cases of opposition lawmakers disqualified under Article 48(1):

Fan Yew Teng (1977)

NONEFan (right) was a rising star in DAP when he was arrested in 1970 and later charged with sedition for publishing the speech of the then Penang DAP chairman, Dr Ooi Kee Saik, in the party’s newsletter.

Initially he was fined RM2,000  or six months’ jail but the court was ordered to rehear the case after he won his appeal to the Privy Council in United Kingdom.

When the case was heard again in 1975, Fan had been elected as Menglembu MP and Petaling state assemblyperson in the 1974 general election.

The Kuala Lumpur High Court again found him guilty and the Election Commission (EC) was quick to announce a by-election despite the fact that Fan had appealed to a higher court.

Two days before the polling day, the court ruled that the by-election was null and void, forcing the EC to cancel it.

Fan kept his seat until the Privy Council in 1977 upheld the High Court decision. However no by-election was called because the three-year period from the last general election had passed.

He later left the country for further studies and quit DAP in 1978.

Lim Guan Eng (1998)

The current DAP secretary-general cum Penang chief minister was arrested in 1994 when he was Kota Melaka MP, following his criticism of the government’s handling of an allegation of statutory rape of a Malay minor by the then Malacca Chief Minister Abdul Rahim Thamby Chik.

Lim was charged under the Sedition Act and Printing Presses and Publications Act 1984 for causing “disaffection with the administration of justice in Malaysia” and ‘”maliciously printing” a pamphlet containing alleged false information.

He lost his seat after being sentenced to 18 months’ imprisonment despite a series of appeals. Due to the five-year ban, the DAP Youth chief missed two general elections until he was re-elected in the 2008 general election.

Wee Choo Keong (1995)

vk lingam hearing wee choo keong pc thirunama 180108 sternThe current Wangsa Maju MP, who recently quit PKR and to become an Independent, was elected as Bukit Bintang MP in the 1995 general election under the DAP ticket.

His opponent, Lee Chong Meng from MCA, challenged his position after he was fined RM7,000 by the court for breaching a court injunction.

The injunction banned Wee (left) from making allegations against MBF after he made a police report claiming irregularities in the finance company.

The judge made a controversial decision to nullify his election victory and declared Lee as the legitimate MP, without calling for a by-election.

However, Wee won his appeal to set aside the injunction in 2007, 12 years after he was disqualified.