SEPTEMBER 23 ― Member of Parliament (MP) for Pasir Gudang Hassan Abdul Karim disagreed with Dewan Rakyat Speaker Azhar Azizan Harun who ruled that former prime minister Najib Razak would remain the MP for Pekan until the disposal of the latter’s motion for review in the Federal Court and/or the latter’s petition for a pardon.

In response to Hassan’s contention that Najib had been disqualified as an MP, Joshua Wu argued that Hassan’s “contentions do not hold water.” Joshua referred to Article 48(1) of the Federal Constitution which begins with the words: “Subject to the provisions of this Article.”

This means that Article 48(1)(e), which Hassan relied on to automatically disqualify Najib as an MP, has to be read together with the other provisions in Article 48.

A general view of Parliament building in Kuala Lumpur March 19, 2021. ― Picture by Yusof Mat Isa
A general view of Parliament building in Kuala Lumpur March 19, 2021. ― Picture by Yusof Mat Isa

I agree with Joshua. It reminds me that one cannot read the law, particularly the Constitution ― in bits and parts. One cannot simply read Article 48(1)(e) to say that if an MP has been convicted of an offence by a court of law in the Federation and “sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon” he or she is disqualified as an MP. The disqualification in Clause 1(e) must be read together with other provisions in Article 48.

This reminds me also of Clause (2) of Article 8 (on Equality) which reads as follows:

“Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”

Again, one cannot simply read the above provision as prohibiting discrimination on the ground “only of religion, race, descent, place of birth or gender in any law” ― the word “gender” having been inserted by way of amendment in 2001 ― and leave out the opening words “Except as expressly authorised by this Constitution.”

The opening words clearly allude to discrimination authorised by the Constitution. In other words, the Constitution can provide for discrimination which discrimination does not violate the Constitution.

It is said that the provisions of a Constitution cannot be in conflict with each other. The constitutional provisions must be read harmoniously. A harmonious reading of Article 14(1)(b) read with Clause 1(b) of Part II of the Second Schedule as well as Article 8 means that the discrimination against mothers whose children are born outside the Federation are not citizens by operation of law is a discrimination “expressly authorised by the Constitution”, notwithstanding the prohibition on ground only of gender.

If the discrimination is to be done away, the Constitution has to be amended to make the Constitution a living document, evolving and adapting to new realities and ethos of the time.

That is the motivation behind MP for Pengerang Azalina Othman Said and four Pakatan Harapan (PH) MPs submitting Private Member’s Bills to the Dewan Rakyat, seeking to give Malaysian mothers the same rights as Malaysian fathers to pass on their citizenship to foreign-born children.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.