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Standpoints

Why Najib is still MP for Pekan

The former prime minister filed a petition for a pardon and a motion for a review of the Federal Court's decision within 14 days of its verdict on Aug 23.

Joshua Wu
3 minute read
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Azhar Harun, the speaker of the House of Representatives, has ruled that Najib Razak will 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. 

Hassan Abdul Karim, the MP for Pasir Gudang, disagrees with Azhar on, among others, the following grounds: 

(a) Najib was disqualified as an MP as soon as the Federal Court handed down its decision;

(b) The royal pardon proceeding has not been heard;

(c) The Royal Pardon Board is not a court; and

(d) It is not stated in the Federal Constitution that if an MP petitions to the pardons board or applies for a review of the Federal Court's decision that his/her qualification as a MP remains. 

With all due respect to Hassan, none of his contentions hold water. 

Article 48(1) of the Federal Constitution, which he is relying on, expressly begins with the phrase "Subject to the provisions of this article."

This would mean that Article 48(1)(e) of the Federal Constitution, which Hassan is relying on to automatically disqualify Najib as an MP, has to be read together with the other provisions in Article 48 of the Federal Constitution.

Article 48(4) of the Federal Constitution has various sub-provisions of relevance.

Articles 48(4)(b) and (c) of the Federal Constitution provide: 

"Notwithstanding anything contained in the foregoing provisions of this article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to Paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2)— 

...

(b) if within the period of fourteen days specified in Paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or

(c) 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."

As Najib appealed to the Federal Court, his disqualification from being an MP would only take effect 14 days after the disposal of his Federal Court appeal. 

The Federal Court handed down its decision, in relation to Najib's appeal, on Aug 23, 2022.

However, within the 14 days from Aug 23:

(a) Najib filed a petition for a pardon, on Sept 2; and  

(b) Najib filed a motion for review against the Federal Court's decision, on Sept 6. 

This would mean that Articles 48(4)(b) and (c) of the Federal Constitution have come into play to "stay" Najib's disqualification as an MP.

Najib will only be disqualified as an MP upon the expiry of 14 days from the date of the disposal of his motion for review in the Federal Court or immediately upon the disposal of his petition for a pardon (whichever is later).

Granted, Najib's petition for a pardon has not been disposed of by the pardons board. However, Article 48(4)(c) of the Federal Constitution applied as soon as Najib's petition for a pardon was filed. 

Further, it is also granted that the pardons board is not a court. However, Hassan appears to be conflating Articles 48(4)(b) and (c) of the Federal Constitution.

Article 48(4)(b) of the Federal Constitution would apply to Najib's motion for review while Article 48(4)(c) of the Federal Constitution would apply to his petition for a pardon.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.