DEWAN Rakyat Speaker Azhar Azizan Harun has ruled that Najib Razak will remain the Pekan MP 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 Pasir Gudang lawmaker, disagrees with Azhar, among others, the following grounds:

– Najib has been disqualified as a lawmaker as soon as the Federal Court handed its decision;

– the royal pardon proceeding has not been heard;

– the Pardons Board is not a court; and

– 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 lawmaker remains.

With all due respect YB Hassan, all of his contentions do not 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 a parliamentarian, 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.

Article 48(4)(b) and (c) of the Federal Constitution provides:

“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.” (Emphasis mine)

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

The Federal Court handed its decision, in relation to Najib’s appeal, on August 23.

However, within the 14 days from August 23:

a. Najib filed a petition for a pardon, on 2nd September 2022; and

b. Najib filed a motion for review against the Federal Court’s decision, on September 6.

This would mean that Aaticle 48(4)(b) and (c) of the Federal Constitution has come into play to “stay” (read: pause) Najib’s disqualification as a lawmaker.

Najib will only be disqualified as a parliamentarian 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 applies as soon as Najib’s petition for a pardon has been filed.

Further, it is also granted that the Pardons Board is not a court. However, Hassan appears to be conflating between article 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) would apply to Najib’s petition for a pardon. – September 9, 2022.

* Joshua Wu reads The Malaysian Insight.

* 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.