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KUALA LUMPUR, July 27 --- The High Court is expected to decide tomorrow whether Pekan MP Datuk Seri Najib Razak is guilty or not guilty of the charges in the SRC International trial.
It’s one of several high-profile corruption cases in courts over the past two years and the first ever to involve a former prime minister, to reach a resolution at the High Court.
Some of you may be wondering about the legal implications for an MP who is found guilty. Here’s what Malay Mail found out from several lawyers.
1. What happens to an existing MP’s status?
Article 48(1)(e) of the Federal Constitution states that MPs are disqualified if convicted of an offence and sentenced to a jail term of more than one year and fined more than RM2,000 and if they have not received a “free pardon.”
But constitutional lawyer Lim Wei Jiet said the disqualification may not be immediate.
“Under Article 48(4)(b), upon a conviction exceeding RM2,000 or more or prison sentence of above one year, as long as that MP files an appeal within 14 days, his seat will not be vacant.
“The vacation of such a seat would only happen if the appeals have been exhausted and the conviction is upheld by the appellate courts,” he told Malay Mail when contacted.
When asked if appeals being exhausted means that if the MP failed at the Federal Court level after going through the Court of Appeal when appealing against a High Court decision, Lim agreed but said it does not necessarily have to end at the Federal Court as some can choose not to or fail to further appeal to the Federal Court within 14 days of a Court of Appeal decision.
Article 48(4)(a) shows that an MP will be disqualified 14 days from the date he or she was sentenced to more than RM2,000 or more than one year, but Article 48(4)(b) provides if an MP appeals the sentence within 14 days, the MP would only be disqualified 14 days from when the court decides on the appeal.
Article 48(4)(c) meanwhile provides for a disqualification of an MP only immediately after a petition for pardon is decided, if the MP had filed such a petition.
Constitutional lawyer Sivarasa Rasiah, who is himself an MP for Sungai Buloh, similarly also referred to Article 48(1)(e) and 48(4) of the Federal Constitution.
“For a sitting MP, as long as Parliament is not dissolved, he remains an MP until he exhausts his final appeal against his conviction and/or an application for pardon,” Sivarasa told Malay Mail.
In short: An MP can remain an MP and will not be disqualified immediately, if an appeal is filed within 14 days and the appeal is ongoing.
2. What about eligibility to contest in future elections?
While an MP can hold on to his seat as long as he has an appeal pending in the courts, Lim said that an individual sentenced to more than RM2,000 fine or more than one-year jail would not be allowed to be an election candidate for federal seats even if there is an ongoing appeal.
“In terms of eligibility to contest as an MP, pursuant to Art 48(5), the effect of such a conviction operates immediately and notwithstanding any appeals filed,” he said.
Under Article 48(5), a person is “immediately” disqualified upon such sentencing from being nominated, or contesting in elections or being appointed to either the Dewan Rakyat or Dewan Negara.
Such a ban would last for five years, with Lim noting: “Article 48(3) basically says an MP upon being disqualified under Article 48(1)(e), cannot run for office to be an MP for a period of five years from the date of his sentence.”
But as for a person who is acquitted after appealing, Lim said they would regain eligibility to be an election candidate, noting: “If they are acquitted, they can be nominated to contest as an MP immediately. Of course if the next general election is far away and he missed the last one, he has to wait.”
Citing Article 48(3), Sivarasa also confirmed that the barring of contest in elections for five years runs from the date the individual is released after serving jail time or from the date the fine is imposed if it is only a fine. Also under Article 48(3), the five-year prohibition is imposed unless a pardon is granted by the Yang di-Pertuan Agong.
“Once Parliament dissolves, the convicted MP is disqualified from contesting even if his final appeal and/or application for pardon is still pending,” he said when commenting on the effect of the constitutional provisions.
In short: An MP or any individual loses the eligibility to contest immediately, even if they have an appeal and their appeal against the sentence has yet to be decided by the court.
3. What about positions in political parties?
Both lawyers referred to Section 9A of the Societies Act on what would happen if a person is sentenced to more than RM2,000 or more than a one-year jail term.
Sivarasa said that such an individual cannot even be employed or be an advisor to a political party: “A convicted MP with those punishments is also disqualified from holding office in a political party, and being an advisor or employee.”
Sivarasa confirmed that disqualification from any party position is “immediate”, but noted that an individual who has an appeal could apply to the Registrar of Societies under Section 9A(4) to be exempted from such disqualification, with the Registrar having the “discretion to grant an exemption and for how long.”
Sivarasa also highlighted that such disqualification of holding office applies to all registered societies, and not just political parties.
Citing the Trade Unions Act 1959 and the Legal Profession Act 1976, Sivarasa confirmed that the type of offence that a person is convicted of would be relevant to determine if they cannot be a trade union member or a lawyer: “For being part of a trade union or to practise as a lawyer, a conviction can affect but depends on the offence etc. Not a blanket ban based on the sentence.”
Lim confirmed that a person holding office in political parties will have to appeal against the sentence and specifically ask for a stay of the sentence to avoid losing the position.
“Insofar as the disqualification of office bearer positions is concerned, since there is no equivalent Article 48(4)(b), I believe that a stay has to be specifically granted pending appeal to prevent the vacation of that office.
“If a stay is not granted, disqualification is automatic,” he said.
Under Section 9A, a person is disqualified and shall not become or remain in a registered society including political parties in the roles of office bearer, adviser or employee if the sentencing crosses the threshold of RM2,000 and one-year jail, with the ban also lasting for five years from release from jail or from the date when the fine was imposed.
Also under Section 9A, once the Registrar informs a society of the disqualification of any office bearer, adviser or employee, the society is required to immediately give effect to the disqualification.
Under Section 9A(6), it would be an offence to remain or become a society’s or a political party’s office bearer once disqualified or to breach any terms or conditions imposed by the registrar when granting an exemption for the disqualification, with the penalties being a maximum three-year jail term or a maximum RM10,000 fine or both.
In short: Immediate disqualification from holding positions in a political party even if there is an ongoing appeal against the sentence of more than RM2,000 fine or more than one-year jail, unless an application is made to the Registrar of Societies for exemption and the Registrar grants the exemption from disqualification (terms and conditions may apply, exemption period up to Registrar).
Some past examples of how the law worked
How the law worked in the cases of two politicians below is important to show the possible financial implications on an MP, as well as to show that states can have the same laws as the Federal Constitution when it comes to disqualifying lawmakers.
The late DAP leader Karpal Singh, who was Bukit Gelugor MP, was on March 11, 2014 fined RM4,000 by the High Court for committing sedition with his 2009 comments on the 2009 Perak constitutional crisis.
At that time, Karpal said that he would be able to remain as MP until he fully exhausts his right to appeal.
On March 29, 2014, Karpal announced that he was stepping down from the DAP national chairman post while pending his appeal at the Court of Appeal against his sedition conviction, noting that the law disallows him from continuing to hold party posts until and unless his conviction is either set aside or his fine reduced to below RM2,000.
After Karpal’s death in April 2014, the Court of Appeal in May 2016 upheld the sedition conviction but reduced the fine from RM4,000 to RM1,800, which would mean his widow could collect his pension as he was not regarded as disqualified as MP.
On March 29, 2019, the Federal Court unanimously acquitted Karpal of sedition posthumously after finding a substantial miscarriage of justice in his case.
For PKR’s Datuk Seri Anwar Ibrahim, who had always assumed the position of de facto party leader since the party was formed in 1999 and only became the party president in 2018, was sentenced to a six-year jail term in April 1999 for corruption and nine years in jail in August 2000 for sodomy.
The Federal Court in July 2002 rejected Anwar’s appeal in the corruption case, and in September 2004 acquitted Anwar in the sodomy case.
After having completed his jail sentence for corruption in April 2003, a five-year ban from contesting in political elections saw Anwar missing the 12th general elections in March 2008 as the ban only ended in April 2008.
Anwar later became an MP in August 2008 after winning the Permatang Pauh by-elections.
Anwar was again charged in August 2008 for sodomy, with the High Court in January 2012 acquitting him and the Court of Appeal on March 7, 2014 convicting him, while the Federal Court on February 10, 2015 upheld his conviction with a five-year jail term.
While getting to keep his Permatang Pauh seat after the Court of Appeal decided to convict him on March 7, 2014, Anwar was barred from contesting in the March 23, 2014 by-election for the Kajang state seat in Selangor due to a similar provision in Selangor laws like the Federal Constitution.
Article 64(4) of the Selangor state constitution provides that a person sentenced to more than RM2,000 and more than one-year jail is immediately disqualified from being elected into the Selangor state legislative assembly. This disqualification takes effect even if an appeal is filed.
Malay Mail’s check of Article 64 of the Selangor state constitution shows that the law is worded similarly there to Article 48 of the Federal Constitution, with the state constitution also listing the situations where a Selangor assemblyman would be disqualified and stating that a Selangor assemblyman could retain their status if they filed an appeal within 14 days of the sentencing and while the appeal is ongoing, with a similar five-year ban from contesting in state elections for those disqualified as the result of such sentencing.
Anwar won the Permatang Pauh parliamentary seat in the 13th general elections in 2013, but lost his seat in April 2015 as he became disqualified as an MP when his petition for a pardon in the second sodomy case was rejected.
Anwar was released from prison in May 2018 after receiving a pardon, with no five-year ban on contesting in elections as he was pardoned. He then contested and won the by-election for the Port Dickson parliamentary seat in October 2018.