KUALA LUMPUR – Despite being convicted for his role in the SRC International Sdn Bhd scandal, Pekan MP Datuk Seri Najib Razak can still maintain his parliamentary seat provided he files for a review of the apex court’s decision or petitions for a royal pardon in the next two weeks.
One of the country’s foremost constitutional experts, Prof Emeritus Datuk Shad Saleem Faruqi, told The Vibes that once the petition or the review has been filed, Najib cannot be disqualified as a legislator until the processes have been exhausted.
The academic said Article 48(1)(e) of the federal constitution disqualifies a convicted lawmaker from membership in the upper and lower Houses if they have been jailed for one year or fined more than RM2,000 unless a petition or review is filed.
“To maintain his (Pekan) seat, he must file another application to the court within 14 days of his conviction. At the moment, there’s no possibility of appeal because it has been exhausted.
But under Rule 137 of the Federal Court, he can file a review of its decision in the interest of justice but the standard of admitting such an application is very, very high.
“There has to be a clear perversion of justice or fraud or bias, it cannot simply be that the legal interpretation was wrong because this isn’t an appeal – this is a manifestation that injustice has been done and the court can look into it.
“And pending the Federal Court proceedings or pardon petition he retains his seat in the Dewan Rakyat,” said Shad.
However, the legal expert also stressed another caveat – should a general election be called while the former prime minister is waiting for the approval or dismissal of his legal application and petition – he automatically vacates the Pekan seat.
What happens to his (Najib’s) present seat whether he loses or retains (the seat) under Article 48, at the next election he cannot be nominated, elected or appointed to the Senate and he will be disbarred for five years,” he said.
“And the country knows that the election is just around the corner, it will happen next year.”
The different types of pardons
Regarding the royal pardon itself, Shad said there are 13 clauses (and sub-clauses) under Article 42 of the federal constitution, which could lead to different types of pardon.
He added that the clauses and sub-clauses include words such as commutation, remission, respite, reprieve and suspension – words which do not lead to a full pardon.
He said in the case of Datuk Seri Anwar Ibrahim in 2018, the opposition leader was granted a “full and free” pardon, which essentially wiped out his conviction, leading to a clean slate allowing him to contest in the Port Dickson by-election after he was freed.
However, there were other cases where a full and free pardon was not granted – among the ones mentioned by the academic include one involving former culture, youth and sports minister (1980-1983) Datuk Mokhtar Hashim.
In the case of Mokhtar Hashim, who was found guilty of murdering Negri Sembilan speaker Datuk Mohamad Taha Talib, the Yang di-Pertuan Agong did not wipe out his conviction.
“Instead of a death sentence, the Agong commuted it to life imprisonment – this was a reduction or remission. A few years later (in 1991), he was granted a pardon and released,” said Shad.
On Tuesday, the Federal Court upheld the Kuala Lumpur High Court’s decision that Najib is guilty of all seven charges in the SRC International corruption case and will have to serve his 12-year sentence, as well as pay a RM210 million fine.
A five-member bench chaired by Chief Justice Tun Tengku Maimun Tuan Mat said the findings of the high court were correct and the defence had failed to raise reasonable doubt.
Tengku Maimun ordered Najib to serve his sentence immediately. – The Vibes, August 26, 2022
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