Disqualification should be at end of criminal appeal - not delayed for other reason? Repeal Article 48(4)(c) FC?Will these criminal MPs still receive very high pensions?

Important to amend Constitution now - to end delay of disqualification of MPs after they have been convicted for crimes and appeals end. The petition for pardon to King or Rulers of States should not be a reason to delay disqualification of a criminal MP... Repeal Article 48(4)(c)...

Media Statement – 19/9/2022

Repeal Article 48(4)(c) of the Federal Constitution so that disqualification of convicted criminal MPs starts at the end of all criminal appeals, and not be further delayed by pardon petitions

People’s right to choose new MP should not be delayed

We, the 4 undersigned groups adopt the position that a Member of Parliament (MP) convicted of a crime, like former Prime Minister Najib Razak, should immediately be disqualified as MP after all the appeals against criminal conviction are over. This disqualification as MP by reason of criminal conviction should never be further delayed by reasons of application for pardon by King or State Ruler. As such, Malaysia must justly repeal Article 48(4)(c), the provision now in the Federal Constitution that allows further delay of disqualification as MP by reason that a petition of pardon has been filed

The Federal Constitution in Article 48(4)(c) that states that disqualification by reason of criminal conviction will be delayed ‘…(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…’.

This means that Malaysia’s Constitution, as it is now, allows for an unjustified further delay in an MP’s disqualification, on the grounds that he 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 to continue paying a convicted MP his salary/allowances even after the High Court finds him guilty, and then until the right of 2 appeals is exhausted. A further delay in disqualification because of a petition of 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 4 years after Najib was first charged July/August 2018 to the date the Federal Court finally rejected his final appeals on 23/8/2022. On 23/8/2022, Najib was finally sent to Prison on August 23 after a five-judge panel at the Federal Court upheld his 7 convictions and sentence for offences related to RM42 million in public funds from SRC International Sdn Bhd, a former subsidiary of 1MDB.

It must be remembered that Najib was found guilty of all 7 criminal charges, where the total sentence of imprisonment was 72 years being

‘(i) For the single charge under s. 23 of the MACC Act for abuse of position for gratification - imprisonment for 12 years and a fine of RM210 million (in default five years' jail);

(ii) For each of the three charges under s. 409 of the Penal Code for criminal breach of trust - imprisonment for ten years; and

(iii) For each of the three money laundering charges under s. 4 of the AMLATFPUAA - imprisonment for ten years.’

As such, despite being convicted for very serious crimes whilst he was Prime Minister/Minister, which would have resulted in Najib being imprisoned for 72 years, the courts mercifully decided that all the sentences were to run concurrently, being at the same time, so he now only had to spend 12 years in prison, and pay RM210 million 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 of 2 appeals, as this right to appeals is part of the Right to A Fair Trial. Lower courts could have made a mistake, so delay until appeal/s are over is reasonable.

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

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

Alternatively, pardons maybe because of serious miscarriage of justice – but then, should the King or State Ruler ‘pardon’ or should it 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 entire court process that lasted about 4 years, in Najib’s case.

The delay in disqualification of an MP by the making of a petition for pardon cannot be resolved until the Federal Constitution itself be amended by repealing Article 48(4)(c) of the Federal Constitution, and the opportune moment will be by the tabling and passing of a Constitution Amendment Bill when the Dewan Rakyat sits again in October.

With regard to public servants, peoples’ representatives like MPs and ADUNs, Ministers and Prime Minister, a criminal conviction ought not only lead to a disqualification of the MP, but should also include the cancellation or reduction of pension especially for those convicted for crimes related to abuse of powers, criminal breach of trust, money laundering, corruption and such crimes whilst in office.

Why should Malaysians 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 for abuse of position, criminal breach of trust and money laundering until he dies, and thereafter to his dependents.

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

Should disqualification of MPs extend also to those who accept compound offers under Anti-Money Laundering and Anti-Terrorism Financing Act (AMLA) offences? After all, should not acceptance of a compound offer be acknowledged to be an ‘admittance’ of guilt. An innocent will seek trial to proof his innocence.

Therefore, we reiterate our

-          Call for the immediate repeal of Article 48(4)(c) of the Federal Constitution, that will ensure that a Member of Parliament will be disqualified when his final criminal appeal ends;

 

-          Call on Malaysia to table immediately a Constitution Amendment Bill to repeal Article 48(4)(c) at the next Dewan Rakyat sitting in October 2022;

 

-          Call for cancellation and/or reduction of pension entitlement of Ministers, Members of Parliament and/or public officers who are convicted of criminal offences whilst in office for charges like abuse of position, criminal breach of trust, corruption and money laundering;

 

-          Call on Malaysia and State governments for the enactment of clear laws/enactments that will clearly set out procedure and rights of  the pardon process, which shall also state clearly the time limit for disposal of petitions of pardon, for as it stands now, Najib’s petition for pardon may not even be disposed off for years, and so he may stay on as Member of Parliament for Pekan until the next General Elections.

 

Charles Hector

On behalf of the following groups

 

ALIRAN

MADPET(Malaysians Against Death Penalty and Torture

Saya Anak Bangsa Malaysia [SABM]

WH4C (Workers Hub For Change)