In Malaysia, once the court finds a MP guilty, convicts and sentences him/her - we have allowed them to remain as Mp until he completes his/her appeals, and this can take a very long time maybe even longer that their term in office. Is this RIGHT and JUST for the constituents and the people, who that MP/ADUN is the people's representative?
After conviction - that MP is a CONVICTED CRIMINAL - and, he remains so until the appeal courts overturns his/her conviction - if not he/she still remains a convicted criminal.
TRUE - any person convicted of a crime, have the right to 2 appeals - but what about the rights of the people who chose him/her as their 'peoples' representative'.
The PRESUMPTION of innocence until proven guilty ENDS with a conviction after a fair trial.. so Muar MP Syed Saddiq Abdul Rahman is now a convicted criminal - no more is he to be presumed innocent.
A presumption of innocence means that any defendant in a criminal trial is assumed to be innocent until they have been proven guilty.
Read more at: https://www.deccanherald.com/india/explained-what-happens-when-a-sitting-mp-is-convicted-a-look-at-the-relevant-sc-judgement-1203147.html
Read more at: https://www.deccanherald.com/india/explained-what-happens-when-a-sitting-mp-is-convicted-a-look-at-the-relevant-sc-judgement-1203147.html
Read more at: https://www.deccanherald.com/india/explained-what-happens-when-a-sitting-mp-is-convicted-a-look-at-the-relevant-sc-judgement-1203147.html
Read more at: https://www.deccanherald.com/india/explained-what-happens-when-a-sitting-mp-is-convicted-a-look-at-the-relevant-sc-judgement-1203147.html
In Malaysia too, our Federal Constitution in Article 48(1) '...Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if—...(e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon; or...'
This means, if an MP has been convicted like Syed Saddiq, then if there is an elections or a GE, he is disqualified by reason of his conviction - where he faces 9 years imprisonment, RM10 million fine and 2 whipping, but since the court allowed some sentences to run concurrently - it may be just 7 years in prison > hence he is DISQUALIFIED for standing for elections.
End Result of Syed Saddiq's 4 charges (my reading from media reports) - seven years jail and a RM10 million fine(plus 2 whipping) after being convicted of abetting in criminal breach of trust (CBT), misappropriation of assets and money laundering.
Charge 1 - three years in prison and to be whipped once for the CBT charge.
Charge 2 - two years jail and one stroke of the rotan for embezzlement of assets that belonged to the youth wing of Bersatu. [Both these sentences (No. 1 and 2) are to run consecutively, meaning he will serve five years in jail and whipped twice.]
Charge 3 - two years each for the two counts of money laundering, and a fine of RM5 million each.
Charge 4 - two years each for the two counts of money laundering, and a fine of RM5 million each. However, he ordered these two sentences(Charge 3 & 4) to run concurrently - 2 years imprisonment + RM10 million fine)
However, our Federal Constitution accords a DIFFERENT treatment for sitting MPs or Senators, where they are allowed to remain in their position if there are appeals, pardons...
48(4) 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)—
(a) the disqualification shall take effect upon the expiry of fourteen days from the date on which he was—
(i) convicted and sentenced as specified in the aforesaid paragraph (e); or
(ii) convicted of an offence or proved guilty of an act under a federal law made in pursuance of Clause (2); or
(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.
Article 48(5) makes it clear that it is only for MPs who are convicted when they are MPs..(5) Clause (4) shall not apply for the purpose of nomination, election or appointment of any person to either House of Parliament, for which purpose the disqualification shall take effect immediately upon the occurrence of the event referred to in paragraph (e) of Clause (1) or in Clause (2), as the case may be.
WHY THE DOUBLE STANDARDS FOR A SITTING MP? It is best that Article 5(4) be REPEALED. SAME STANDARDS OF DISQUALIFICATION FOR A PERSON WANTING TO BECOME A MP, AND A PERSON WHO IS A SITTING MP.
Another point is the FINANCIAL IMPLICATIONS - why do we have to continue paying a MP who has been convicted. Basic allowance of RM16,000 and plus all additional allowances/etc, it could be about RM40,000 -RM50,000. Then, there is the other benefits like healthcare, purchasing of cars..
Then, there is the PENSION for life, and derivative pendion for spouse and qualified children after that MP dies- where the amount is dependant on the number of months he serves as MP. If taking allowance at RM16,000, then this pension which starts at age 50 is about RM4,000 - RM10,667, which is a lot of money for a person who really is not even a full-time MP, as many MPs continue to work as lawyers, doctors, dentist and in business earning...
1/144 x period of reckonable service x salary, subject to a maximum of three-fifths of salary
Besides pension, MPs also get GRATUITY
4. Gratuity for Members
(1) A person who ceases to be a Member may be granted a gratuity calculated on the following formula:
1/48 x salary x 12 x period of reckonable service
THE IDEA OF A CONVICTED CRIMINAL CONTINUING TO BENEFIT FROM PENSIONS UNTIL HE/SHE DIES, AND THEREAFTER HIS/HER SPOUSE AND QUALIFIED CHILDREN , and gratuity and other benefits because he/she was a MP, Minister or Prime Minister is absurd. It is Malaysians that pay these pensions, gratuity, etc...
We saw how Najib continued to be MP even after he lost his appeal at the Federal Court - simply because he filed a petition for pardon...if GE15 did not happen yet, Najib would have still been a MP.
Other countries, like India, once convicted - one is disqualified... This was the position since 2013 - 10 years ago. - see below.
So, in Malaysia, TIME TO REPEAL ARTICLE 48(4) OF THE FEDERAL CONSTITUTION - I believe the majority of good and just MPs and Senators will support such a move.
Malaysia should also consider the cancellation of PENSIONS and other Benefits when a MP, Senator, ADUN, Minister, (now or before) was convicted of a crime. It is absurd for Malaysians to be burdened with having to still pay convicted criminals such high pensions.
FAQ on the Supreme Court Judgment declaring immediate disqualification of convicted MPs/MLAs
(Petitioners: Ms Lily Thomas & Mr S.N Shukla (General Secretary: Lok Prahari)
The Supreme Court judgment on the 10th July, 2013 on Writ Petitions filed by Ms Lily Thomas and Mr. S.N Shukla of Lok Prahari has stated that if a sitting MP/MLA is convicted of an offence(not only charged) then he/ she would be disqualified immediately and the seat would be declared as vacant.
Below are a few frequently asked questions about the judgment and its effect.
1. What is the crux of the judgment?
The judgment has declared Section 8(4) of the Representation of People Act as ultra vires. Earlier as per the provisions of Section 8(4) of the Act, a sitting MP/MLA, if convicted, could continue to remain in office by filing an appeal or revision application against the conviction within a period of 3 months. Now, as per the judgment if a sitting MP/ MLA is convicted of an offence (not only charged), he/ she shall be immediately disqualified and the seat shall be declared as vacant.
2. Will all convictions lead to immediate disqualification?
No. Only convictions under Sections 8(1), 8(2), 8(3) of the Representation of the People Act, (RPA) will lead to immediate disqualification.
3. What is the basis behind the judgment?
The judgment says that if a certain criterion stops a person from contesting in elections, then the same criterion also holds for sitting MPs/ MLAs and consequently even they cannot continue being a member of the Parliament or State Legislature. The judgment also says that the Parliament does not have the legislative powers to make different laws for disqualification for both members and non-members, as it is against the provisions of the Constitution. As per the judgment, persons contesting elections to be elected as members of Parliament or a State Legislature stand on the same footing as sitting members of Parliament and State Legislatures so far as disqualification is concerned and sitting members of Parliament and State Legislatures cannot enjoy a special privilege of continuing as members even though they are convicted of the offences mentioned in subsections (1), (2) and (3) of Section 8 of the Act.
4. What does the Constitution say to support the basis behind the judgment?
Article 102(1) lays down the criteria of disqualifications for sitting members and contesting candidates) to either House of Parliament where as Article 191(1) lays down the criteria for disqualification for sitting members and contesting candidates to the Legislative Assembly or Legislative Council of the State. However, sub-clause (e) of Articles 102(1) and 191(1) , on the other hand, has conferred specific powers on Parliament to make law providing additional disqualifications for membership to either House of Parliament or Legislative Assembly or Legislative Council of the State.
Articles 102(1) and 191(1) of the Constitution purposely make it clear that same disqualification is applicable for a person being chosen as a member of either House of Parliament, or the State Assembly or Legislative Council of the State and for a person being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Therefore, there cannot be a differential treatment on disqualification for the sitting members and non- members. Section 8(4) of the Representation of People Act which provided a special privilege(a 3 months’ time to appeal) to the sitting members when it comes to disqualification, it was therefore, ulra vires the provisions of Article 102(1)(e) and 191(1)(e) and it was liable to be struck down.
5. If convicted, how long would it take to be disqualified?
The judgment says that if a sitting member (MP/ MLA) is convicted, he/ she would be immediately disqualified.
6. Would a member be disqualified even if he is convicted and sentenced to imprisonment for less than 2 years?
A member shall be straight away disqualified if he is convicted of any of the offences mentioned under subsections (1), (2) and (3) of Section 8 of the Representation of People Act which also includes the offences punishable with imprisonment even less than two years
7. Who all will be covered under this judgment from now?
Any MP/ MLA, including sitting members, will be disqualified as soon as they get convicted in any case from the date of judgment (10th July, 2013). The judgment shall not have a retrospective effect.
8. Would this judgment act as a deterrent to those political parties which continue to give tickets to candidates with a tainted past?
The present Supreme Court judgment only accepts the convictions in a court of law as the criteria for an instant disqualification of the sitting members. However, this is still a major signboard against criminalization of politics. Earlier there was no deterrence for Political Parties for not giving tickets to these candidates with pending criminal cases because even if any such candidate got convicted, they would appeal against the conviction and continue to be an MP or MLA. Now since the
convicted member will immediately lose his/her seat, parties would hopefully be hesitant to give tickets to such candidates.
9. Is this judgment enough to remove criminals from politics?
This is a very significant judgment, as it would act as a deterrent to political parties from giving tickets to the tainted candidates. However, the problem concerning pending criminal cases against MPs and MLAs being dragged in the court for many years (actually decades) is also paramount.
There are some very important petitions on the issue of criminalization of politics that are already going on in the Supreme Court for which the Court has asked for the responses from the central government as well as the Election Commission of India.
In addition, the Central Information Commission has also delivered a judgment on getting Political Parties under the ambit of RTI Act. The efforts are already going on for the execution of CIC’s order.
Also, introducing a separate law to regulate the functioning of political parties is the need of the hour which would go its way forward in restructuring our present political set-up. Apart from that judicial and police reforms would also help in removing criminals from politics. - https://adrindia.org/sites/default/files/FAQ%20on%20Miss%20Lily%20Thomas%20vs.%20UOI%20judgment.pdf
See also : Explained - What happens when a sitting MP is convicted? A look at the relevant SC Judgment
Syed Saddiq guilty on all four charges, High Court rules
By JUNAID IBRAHIM and ARFA YUNUS Nation
Thursday, 09 Nov 2023 10:23 AM MYT
KUALA LUMPUR: Muar MP Syed Saddiq Abdul Rahman has been found guilty on all charges of abetting in criminal breach of trust (CBT), misappropriation of funds and money laundering.
High Court judge Justice Azhar Abdul Hamid on Thursday (Nov 9) said that the defence failed to raise any reasonable doubt on all four charges he was facing.
On March 14, the defence closed its case after calling Syed Saddiq and three other witnesses, namely Armada Information Chief Ulya Aqamah Husamudin, as well as Mohamed Amshar Aziz, and Siti Nurul Hidayah who are Syed Saddiq's former special officer, and former private secretary, respectively.
A total of 29 prosecution witnesses testified in the trial which started on June 21, 2022.
They included Syed Saddiq’s father Syed Abdul Rahman Abdullah Asagoff, his mother Shariffah Mahani Syed Abdul Aziz, and former Armada assistant treasurer Rafiq Hakim Razali as well as Malaysian Anti-Corruption Commission (MACC) investigating officers Nurul Hidayah Kamarudin, Syahmeizy Sulong, and Asbi Munip.
The case was conducted by deputy public prosecutors Datuk Wan Shaharudin Wan Ladin and Mohd Afif Ali, while lawyers Gobind Singh Deo and Haijan Omar represented Syed Saddiq.
On Oct 28 last year, the High Court here ordered Syed Saddiq to enter his defence after the prosecution successfully established a prima facie case against him.
The former youth and sports minister was charged with abetting Rafiq, who was entrusted with RM1mil of Armada's funds, to commit a criminal breach of trust by misappropriating the funds.
The offence was allegedly committed at CIMB Bank Bhd, Menara CIMB KL Sentral, Jalan Stesen Sentral 2 here on March 6, 2020, and the charge was framed under Section 406 of the Penal Code which is punishable by up to 10 years imprisonment, and liable to whipping and a fine, upon conviction.
On the second charge, he is accused of misappropriating RM120,000 from Armada Bumi Bersatu Enterprise’s Maybank Islamic Bhd account by making Rafiq dispose of the money.
Syed Saddiq allegedly committed the offence at Malayan Banking Bhd, Jalan Pandan 3/6A, Taman Pandan Jaya here between April 8 and 21, 2018, and the charge was framed under Section 403 of the Penal Code, which is punishable by up to five years imprisonment, and liable to whipping and a fine, upon conviction.
He is also facing two counts of money laundering, via transactions of RM50,000 each, believed to be proceeds from unlawful activities, from his Maybank Islamic Bhd account into his Amanah Saham Bumiputera account in a bank at Jalan Persisiran Perling, Taman Perling, Johor Baru, on June 16 and 19, 2018.
The charges were framed under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, which is punishable by up to 15 years imprisonment and liable to a fine of not less than five times the sum or value of the proceeds of an unlawful activity, upon conviction.
Syed Saddiq was charged in the Kuala Lumpur Sessions Court for the CBT and misappropriation of assets charges, while the other two money laundering charges were at the Johor Baru Sessions Court.
The Johor Baru Sessions Court then allowed the prosecution's request to transfer the case in order for all four charges to be jointly tried at the Kuala Lumpur Sessions Court.
On Nov 25, 2021, Syed Saddiq was allowed to transfer the case from the Sessions Court to the High Court. - Star, 9/11/2023
Syed Saddiq jailed 7 years, fined RM10mil
Justice Azhar Abdul Hamid also orders the second-term Muar MP to be whipped twice.
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KUALA LUMPUR: Muar MP Syed Saddiq Syed Abdul Rahman has been sentenced to seven years jail and a RM10 million fine after being convicted of abetting in criminal breach of trust (CBT), misappropriation of assets and money laundering.
Justice Azhar Abdul Hamid sentenced the Muda president to three years in prison and to be whipped once for the CBT charge.
The High Court judge further sentenced Syed Saddiq to another two years jail and one stroke of the rotan for embezzlement of assets that belonged to the youth wing of Bersatu.
Both these sentences are to run consecutively, meaning he will serve five years.
Azhar also imposed a jail term of two years each for the two counts of money laundering, and a fine of RM5 million each.However, he ordered these two sentences to run concurrently.
The judge allowed an application by the defence to stay the jail, fine and whipping sentences pending an appeal to the Court of Appeal.
He also ordered that all bail conditions be retained pending the appeal, including the sum of RM300,000 posted by Syed Saddiq when charged initially.
Syed Saddiq, 30, has the distinction of being the first elected representative to be ordered to be whipped for a white-collar crime under the Penal Code. The law exempts those aged 50 and above from the punishment.
Earlier, deputy public prosecutor Wan Shaharuddin Wan Ladin pressed for a deterrent sentence, saying white collar crimes such as CBT were now rampant among politicians.
“A clear message must be sent to other politicians before they think of committing such crimes,” he said, adding that the court should put public interest first rather than that of the accused.
Wan Shaharuddin said Syed Saddiq had also betrayed the trust placed in him by the people who voted him to public office.
He said the crimes were not carried out at the spur of the moment but were premeditated.
He proposed that the jail terms imposed in respect of the four offences run consecutively, and for Syed Saddiq to be imposed with a hefty fine. He also asked the court to order that Syed Saddiq be whipped.
Lawyer Haijan Omar requested that the court only impose a jail term or a minimum fine.
Lead counsel Gobind Singh Deo said whipping and a fine for committing money laundering offences were at the discretion of the court.
He said the court should also consider that the accused used the money to assist the poor and the needy during the Covid-19 pandemic.
“My client has also been consistent that the money was used to fund his election expenses when he contested the Muar seat in 2018,” he said.
Lawyer Rafique Rashid Ali said that despite the conviction, Syed Saddiq will remain the Muar MP until his right of appeal is exhausted.
He said Article 48(4)(b) of the Federal Constitution states that the disqualification from being an MP only takes effect when a final decision is made by the highest court which, in this case, would be the Federal Court.
“Therefore,
he can still attend Dewan Rakyat sessions, debate and vote in any
motions and others,” he said when explaining that Syed Saddiq could
still carry out his duties as an MP. - FMT, 9/11/2023
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