KUALA LUMPUR, March 14 ― Legislations that strip federal lawmakers of their office if they are jailed for a year or fined RM2,000 should be reviewed to restore Malaysians' freedom to choose their elected representatives, a lawyer has proposed.
Lawyer Charles Hector Fernandez will be proposing a motion in the Malaysian Bar's 72nd annual general meeting this Saturday, where he will call on the professional body of lawyers in Peninsular Malaysia to push for such legal changes.
In the proposed motion sighted by Malay Mail, he said some of the Federal Constitution's provisions on the disqualification of Members of Parliament or those who wish to run for office may be unjust or unreasonable now for Malaysia.
“These disqualifications in law deny peoples' free choice of their Member of Parliament, as some are disqualified from even contesting in elections,” he said in the four-page proposal.
He cited examples of politicians from various parties who had “fallen victim” to such disqualification rules, including DAP's Lim Guan Eng, PKR's Datuk Seri Anwar Ibrahim, Umno's Datuk Mat Yusoff Abd Ghani, and Hindraf's P. Uthayakumar.
“Other politicians that face the risk (of) disqualification as an MP or disqualification in standing in future elections include Pandan MP Rafizi Ramli, Batu MP Tian Chua and Wong Tack (DAP),” he said.
Rafizi, who is from PKR, was sentenced to 30 months’ and 18 months’ jail respectively for leaking banking details related to the National Feedlot Corporation (NFC) and disclosing part of a government audit report on state investment firm 1Malaysia Development Berhad (1MDB) that had been classified under a state secrecy law.
Chua was convicted of insulting a male policeman’s modesty for allegedly swearing at the latter, but the High Court cut his RM3,000 fine to RM2,000 earlier this month, enabling the PKR vice president to remain as Batu MP and to contest the 14th general election.
Article 48 of the Federal Constitution covers various situations where a person will be disqualified from being a Member of either House of Parliament, but Charles singled out the disqualification of anyone convicted of “any offence” and sentenced to a minimum one-year jail term or a minimum RM2,000 fine and has not received a free pardon.
Keep to serious crimes
He said it was “disturbing” that some of those risking disqualification had been convicted for offences linked to freedom of expression, freedom of opinion, peaceful assembly or the highlighting of alleged wrongdoings.
“There is a need to review whether this disqualification should be limited to offences of corruption, murder, robbery, money laundering, breach of trust, malfeasance, treason, rape and/or other serious offences.
“Now, the law says any offence, which could also mean traffic offences and even some other minor offences committed when promoting, defending and/or exercising human rights,” he said.
Going beyond the type of offence, Charles went on to note the examples of other countries where offences do not cause a person to be ineligible, such as Finland, Czech Republic, Slovenia, Sweden and Switzerland.
He suggested that Malaysia could perhaps follow the example of Victoria, Australia, where only a person sentenced to a minimum five-year jail term is disqualified, unlike the one-year jail term here.
No more five-year freeze?
He also pointed out that many other countries allowed a person to immediately contest for elections after they serve their sentence, saying that they should only be barred from becoming an election candidate for a few additional years if they were convicted of crimes like treason.
“A person who has already served their prison sentence, whipped and/or paid their fine should really not be further discriminated as to his/her personal rights, which includes the rights to stand for elections with the hope of being elected a Member of Parliament.
“He/she has paid for crimes committed, and to further discriminate thereafter is not just,” he said.
Article 48(3) of the Federal Constitution currently states that the period when someone is disqualified from becoming an MP will end five years from the date of them paying the fine or from their jail release.
Delete disqualification pardon power
On the other hand, the government has some influence on the pardoning of a convicted person, to allow the latter to be free of disqualification for a further five years after release from jail and to be allowed to join elections immediately, he said.
“Such power could be self-serving and abused, and as such should really be removed from our law,” he said in the proposed motion.
He also argued that a bankrupt person should not be disallowed from holding the legislative position of being an MP, but said being bankrupt may be a reasonable bar for executive positions such as Prime Minister or a Cabinet member.
He said that the people in a democracy must always have the freedom and right to choose who they wish to represent them as MPs.
“People will certainly consider all aspects, including pending and past allegations, charges, convictions and all matters of concern before choosing our people's representatives when we vote,” he said, suggesting that perhaps only age and Malaysian citizenship could be justified as disqualification of those seeking to contest in elections.
In the proposed motion, he urged the Malaysian Bar to resolve to call for the full restoration of the people's right and freedom to choose and elect their representatives; as well as to call for the review, amendment or repeal of all existing legal disqualifications that prevents someone from continuing to serve as MP or state legislative assemblyman or to stand for elections.
He is also proposing that the Malaysian Bar resolve to call on Malaysians, federal and state governments to carry out the necessary review of laws that are currently “unjustly and discriminately” disqualifying those seeking to be election candidates and affecting the public's available choices.
He also wants the Malaysian Bar to resolve that its decision-making body ― the Bar Council ― be empowered to do all that is necessary to protect and promote democracy and the public's freedom to choose their own representatives or offer themselves as election candidates.
The proposed motion is one of 15 motions that are expected to be tabled during the AGM.