High Court has no jurisdiction to hear Tian Chua's case (Updated)

KUALA LUMPUR: The High Court has ruled that it has no jurisdiction to hear Tian Chua's suit on his disqualification as an election candidate.
Stating that Tian Chua's suit is "an election dispute", High Court (Appellate and Special Powers) judge Datuk Nordin Hassan said the challenge on the rejection of nomination papers is included as part of an election process defined under the law and can only be challenged through an election petition.
He also concluded that since he was not an appointed election judge, he cannot determine the validity of Tian Chua's candidacy, which was rejected by the returning officer, named as the first respondent.
"The declaration sought by the applicant in essence is challenging the decision of the first respondent in rejecting the applicant's nomination papers on nomination day on April 28, 2018.
"I find that this is in fact an election dispute contrary to the applicant's counsel's contention that it is not," he said.
Nordin said the definition of elections comprises the many steps in the process from the issuing of notification, calling for an election up to the declaration of the results.
"Election can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps some of which may have important bearings on the result of the process.
"Therefore the filing of a nomination paper by a candidate on the nomination day is part of an election, whereby the procedures, proceedings and matters related to the nomination of a candidate are provided under Regulations 4, 7 and 8 of the Election (Conduct of Elections) Regulation 1981," he said, also citing an Indian Supreme Court's decision.
Allowing the preliminary objection to Tian Chua's suit raised by the Election Commission (EC), the second respondent, Nordin said all electoral matters can only be questioned through an election petition by an appointed election judge.
"As I am not an election judge, I will not be able to determine the validity of his candidacy," he said.
Nordin said Tian Chua can only challenge his disqualification through an election petition before an election judge as required under Article 118 of the Federal Constitution.
He added that Regulation 7 of the Election (Conduct of Elections) Regulation 1981 also provides the remedy of any person aggrieved by the decision of the RO to present an election petition for determination.
Nordin said standing as an election candidate is a special kind of right unknown to the common law, which provides for a special kind of jurisdiction.
"By premise of this provision, as I am not an election judge, appointed under Section 33 of the Election Offences Act 1954, to hear an election petition, I do not have the jurisdiction and powers to determine the validity of the decision of the first respondent nor to bind the declaration sought by the applicant," he said.
On April 30, Tian Chua filed a suit against the RO and EC for disqualifying his nomination as a candidate for the Batu parliamentary seat here on nomination day (April 28).
He had sought a court declaration that he is qualified to contest in the 14th general election (GE14) on May 9.
RO Anwar Mohd Zain disqualified Tian Chua's nomination stating that the RM2,000 fine imposed on him by the Shah Alam High Court on March 2 made him ineligible to contest.
The law disqualifies an MP from public office if he is sentenced to imprisonment for a term of not less than one year or is fined not less than RM2,000.
However the Shah Alam High Court's grounds of judgement has 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 and am of the opinion 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 RM2001 and above and not from RM2,000 onwards," Judicial Commissioner Ab Karim Ab Rahman had said.
Citing Article 48(1)(e) of the Federal Constitution, he said that this penalty imposed by the court will not give any implication in an election in the Batu constituency.
Tian Chua, who has held the Batu seat for two terms from 2008, will not be able to defend his seat in GE14.