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Disqualification of convicted criminal MPs should start at the end of all criminal appeals

The people’s right to choose a new MP should not be delayed by pardon petitions

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We, the five undersigned groups, adopt the position that an MP convicted of a crime, like former Prime Minister Najib Razak, should immediately be disqualified as MP after all the appeals against his or her criminal conviction are over.

This disqualification of an MP due to a criminal conviction should never be further delayed because of an application for a pardon by the King or state ruler.

As such, Malaysia must justly repeal Article 48(4)(c), the provision now in the Federal Constitution that allows a further delay of the disqualification of an MP because a petition for a pardon has been filed

The Federal Constitution in Article 48(4)(c) states that disqualification due to a criminal conviction will be delayed:

if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of….

This means that Malaysia’s Constitution, as it is now, allows for an unjustified further delay of an MP’s disqualification on the grounds that he or she has filed a petition for a pardon. This delay denies the right of the people in the affected constituencies to choose a new MP.

Malaysians still have to continue paying a convicted MP his or her salary and allowances even after the High Court finds him or her guilty, and then until the right of two appeals is exhausted. A further delay in disqualification because of a petition for a pardon means we are still paying a convicted criminal until an undefined date when the pardon is disposed of.

Further, the delayed disqualification affects the people of an affected constituency who are denied the right to speedily choose a new clean MP, rather than continue to be represented by a convicted criminal.

Malaysian had waited for for years after Najib was first charged in July/August 2018 to the date the Federal Court finally rejected his final appeal. On 23 August 2022, Najib was finally sent to prisons after a five-judge panel of the Federal Court upheld his seven convictions and sentence for offences related to RM42m in public funds from SRC International Sdn Bhd, a former subsidiary of 1MDB.

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It must be remembered that Najib was found guilty of all seven criminal charges, where the total sentence of imprisonment was 72 years, comprising:

  • For the single charge under Section 23 of the Malaysian Anti-Corruption Commission Act for abuse of position for gratification – imprisonment for 12 years and a fine of RM210m (in default five years’ jail)
  • For each of the three charges under Section 409 of the Penal Code for criminal breach of trust – imprisonment for ten 10 years
  • For each of the three money laundering charges under Section 4 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act – imprisonment for 10 years

As such, despite Najib being convicted for very serious crimes whilst he was Prime Minister or minister, which would have resulted in him being imprisoned for 72 years, the courts mercifully decided that all the sentences would run concurrently (at the same time), so he now only had to spend 12 years in prison, and pay a RM210m fine. Thus, even in a later consideration of a pardon, it is important that the King and/or state rulers take note of the 72-year sentence.

It is reasonable to delay disqualification of an MP until he has fully exercised his right to two appeals, as this right to appeal is part of the right to a fair trial. Lower courts could have made a mistake, so a delay until the appeals are over is reasonable.

However, after the court’s criminal appeal processes are over, there is no longer any reasonable justification to yet again delay the disqualification of the criminal MP because he has filed a petition for a pardon to the King or state ruler. The pardon has nothing to do with the fact that the MP has been proven guilty beyond reasonable doubt, convicted and sentenced.

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A pardon should essentially be for a repentant convict, who is sorry for his or her crime and has reformed. It should never be because one was a former political party leader or member.

Alternatively, pardons may be because of a serious miscarriage of justice – but then, should the King or state Ruler ‘pardon’ [the convict] or should the matter justly be dealt by the courts?

If the King or state Ruler comes in fast and pardons Najib or any other convict, would it not be seen as making a mockery of the law and the entire court process, which lasted about four years in Najib’s case?

The delay in disqualification of an MP by the filing of a petition for a pardon cannot be resolved until the Federal Constitution itself is amended by repealing Article 48(4)(c) of the Federal Constitution, and the opportune moment will be by tabling and passing a constitutional amendment bill when the House of Representatives sits again in October.

With regard to public servants, people’s representatives like MPs and state legislative assembly members, ministers and the prime minister, a criminal conviction ought not only lead to the disqualification of the MP, but should also include the cancellation or reduction of pension, especially for those convicted of crimes related to abuse of powers, criminal breach of trust, money laundering, corruption and other such crimes while in office.

Why should the people continue to bear the burden of having to pay tens of thousands of ringgit monthly in pensions to former Prime Minister Najib, a criminal convicted of abuse of position, criminal breach of trust and money laundering until he dies and thereafter to his dependents.

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Hence, when it comes to criminal conviction of MPs, it should not just stop with the disqualification as MP, but should also include a deduction or cancellation of pension entitlements.

Should disqualification of MPs extend also to those who accept compound offers under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act offences? After all, should not acceptance of a compound offer be acknowledged as an admission of guilt? An innocent person will seek trial to prove his or her innocence.

Therefore, we reiterate our

  • Call for the immediate repeal of Article 48(4)(c) of the Federal Constitution, that will ensure that an MP will be disqualified when his final criminal appeal ends
  • Call on Malaysia to table immediately a constitutional amendment bill to repeal Article 48(4)(c) at the next House of Representatives sitting in October 2022
  • Call for the cancellation and/or reduction of pension entitlement of ministers, MPs and public officers who are convicted of criminal offences while in office, for charges like abuse of position, criminal breach of trust, corruption and money laundering
  • Call on Malaysia and state governments to enact clear laws or enactments that will clearly set out the procedure and rights of the pardon process, which shall also state clearly the time limit for disposal of pardon petitions – for, as it stands now, Najib’s petition for a pardon may not even be disposed off for years, and so he may stay on as the MP for Pekan until the next general elections

Charles Hector released this statement on behalf of the following groups:

  • Aliran
  • Malaysians Against Death Penalty and Torture (Madpet)
  • Saya Anak Bangsa Malaysia (SABM)
  • Workers Hub For Change (WH4C)
  • National Union of Transport Equipment & Allied Industries Workers
AGENDA RAKYAT - Lima perkara utama
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  2. Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
  3. Raikan kerencaman dan keterangkuman
  4. Selamatkan demokrasi dan angkatkan keluhuran undang-undang
  5. Lawan rasuah dan kronisme
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The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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KSK
KSK
7 Oct 2022 1.42am

Perfectly stated, Charles. Thank you.

Robert
Robert
25 Sep 2022 3.53am

A convicted person like Najib should be disqualified as an MP without waiting for a decision on a royal pardon.

Hypothetically if the Agong takes a year to decide, malaysia will be stuck with a felon as an MP for that one year.

As I understand it, Najib is not allowed to stand for election in GE15 because of his conviction. Technically then he should be stripped of his MP status upon conviction and having exhausted all appeal processes.

A royal pardon is an entirely another matter all together.

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