THE Merriam-Webster Legal Dictionary defines high crime as “a crime of infamous nature contrary to public morality but not technically constituting a felony”.

In the US, it is seen by the Senate as adequate grounds to remove the president, vice-president or any civil officer as a unfit to hold public office and deserving of impeachment.

The charge of high crime covers allegations of misconduct by officials, including ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office.

The charges against former prime minister Najib Razak in the SRC International case fit the definition of high crime. Since he was charged when he was no longer the prime minister, the question of removing him from office did not arise.

But despite having being convicted, Najib is still a member of parliament. The possibility of him once again becoming the chief executive is there as long as he remains an MP.

Moreover, Najib has made clear his ambition to become the prime minister again.

There’s nothing wrong with such an ambition. It’s just that it could create a situation of a conflict of interest.

This conflict of interest arises because the ongoing appeal trial will then involve someone who is or is going to be the prime minister. Would the attorney-general (AG) then be pressured to drop the case? 

Lest someone compare this case to that of Lim Guan Eng, they are not the same. In Lim’s case, he hadn’t been convicted when he was appointed finance minister or when the case was dropped by the AG.

As it is, the threshold laid down by the constitution under article 48(1)(e) for the disqualification of an MP is “imprisonment for a term of not less than one year or a fine of not less than two thousand ringgit”.

This covers both the lesser crime for instance imprisonment of three years or a fine of RM3,000, and high crime, for example, a jail term of 8 years or a fine of RM20,000.

But the effective date of the disqualification is linked to the appeal process i.e., “14 days from the date on which such appeal or other court proceeding is disposed of by the court”, according to article 48(4)(b) of the constitution. 

So to prevent such a scenario of a conflict of interest from happening, those involved in high crime and have already been convicted of it should be suspended from their MP position with immediate effect, regardless of whether they appeal or not.

Under the present situation, the suspension cannot be done because of article 48(4)(b) which links the disqualification to the appeal process. If you can’t disqualify people because of the appeal process, what more suspending them.

But this legal impediment can be overcome via an amendment to the constitution delinking the suspension from the appeal process, and specifying the minimum quantum of fine and term of imprisonment for high crime.

Once the appeals court or the Federal Court overturns the conviction, the suspension is rescinded with immediate effect, and the suspended MP resumes his or her duties.

This suspension does not affect the person’s right to appeal or apply for a stay of execution. 

Neither is this against the principle of natural justice. Otherwise the delinking of the appeal process from the disqualification of taking part in a general election through nomination, election or appointment of any person to either House of Parliament by mere conviction should also be construed as against the principle of natural justice.

By virtue of article 48(5) of the Federal Constitution, which states that a conviction is enough to disqualify an MP “for the purpose of nomination, election or appointment of any person to either House of Parliament”, Najib has already been disqualified from taking part in the 15th general election (GE15) if it is held anytime before the Federal Court decides on his appeal.

This means Barisan Nasional cannot field him as the candidate for Pekan or any other constituency if GE15 is held before the apex court decides on his appeal case.

But what happens if the Federal Court, after GE15, overturns the decision of the High Court? Too bad for Najib then, he has just missed the boat as far as election is concerned.

However, if the GE15 is held after the Federal Court decides on his appeal, and in the event the Federal Court overturns the guilty decision of the High Court, then of course Najib will be able to take part in it. –  December 25, 2021.

* Jamari Mohtar is editor of Let’s Talk!, an e-newsletter on current affairs.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.