Six questions about Najib’s Pekan seat now that he’s in prison

KUALA LUMPUR (Sept 2): Datuk Seri Najib Razak is now Malaysia’s first former prime minister to be imprisoned, but remains the member of parliament for the Pahang constituency of Pekan.

He is serving a 12-year prison sentence and has also been fined RM210 million over the embezzlement of RM42 million from government-owned firm SRC International Sdn Bhd. This is after he failed in his final appeal at the Federal Court on August 23.

1. So what happens now that he’s in prison?

Here’s what you need to know about six questions on prisoner Najib and his Pekan seat, based on the Federal Constitution and what constitutional lawyers told Malay Mail.

Is he still Pekan MP now that he is behind bars? Andrew Khoo, co-chair of the Bar Council constitutional law committee, said the Federal Constitution’s Article 48 meant that an MP would be disqualified within 14 days of receiving a prison term of not less than a year, unless certain steps are taken, such as filing for pardon.

“Article 48(1)(e) read with Article 48(4)(a) and (c) means that it will take effect after 14 days from the date of the appeal is dismissed.

“Disqualification as MP will not take effect if petition for pardon is filed within 14-day period,” he told Malay Mail when contacted, referring specifically to Article 48(4)(c).

Article 48(4)(a) provides that an MP will be disqualified from continuing to be an MP 14 days “from the date” which he was convicted and sentenced as per Article 48(1)(e), or in other words 14 days from the day he was convicted and imprisoned for not less than one year or a fine of not less than RM2,000 and if has not received a free pardon.

Article 48(4)(b) provides, however, that if an “appeal or any other court proceeding” regarding the conviction or sentence is filed within this 14-day period, the disqualification of the MP will be delayed and only happen 14 days after the court decides on the appeal or court proceeding.

Article 48(4)(c) provides that if a petition for pardon was filed within 14 days of the conviction or sentencing or within 14 days after the court decides on the appeal or court proceeding, the MP will be disqualified immediately when the pardon petition is decided.

While filing for review was not specifically mentioned in this constitutional provision, Khoo said it could “conceivably fall within the understanding of “any other court proceeding’”.

Khoo also explained that a pardon is usually sought when all legal remedies have been exhausted.

Based on Article 48(4)(b) and Article 48(4)(c), he said a pardon could be filed 14 days from the dismissal of the application for review or from the dismissal of the review itself.

Constitutional lawyer K Shanmuga cited Article 48(4)(a) when saying Najib’s disqualification only takes effect 14 days after his conviction, but also noted that this disqualification need not take place immediately if he pursues a review or pardon.

“If within those 14 days he files either a review application or files a petition for a pardon, then he is not disqualified until the court application/petition for pardon is disposed of: Article 48(4)(b) and Article 48(4)(c),” he told Malay Mail when contacted.

In short: For now, yes, before the 14 days end. But Najib can only hold on to the Pekan seat if he takes the necessary steps within these 14 days. He needs to challenge his conviction or sentence or seek royal pardon, in order to avoid immediate disqualification as MP.

2. When does the 14-day clock start and end for Najib to keep Pekan?

On when the 14-day period would lapse for Najib, Shanmuga said “he has until end of Tuesday, September 6.”

Shanmuga based this calculation on provisions in the Federal Constitution, particularly Section 36 of its Eleventh Schedule.

While the Eleventh Schedule defines “month” and “year” as being calendar month and calendar years, it did not directly define whether the word “day” would refer to calendar days or working days.

Section 36(a) provides that the days calculated “from the happening of an event” should exclude the day the event happened, while Section 36(b) states that weekly holidays and public holidays are “excluded days”.

Citing Section 36 regarding how time is calculated, Shanmuga noted Section 36(d) would mean weekends and public holidays are excluded when calculating a time period for six days or less, while weekends and public holidays would be included when the time period stated in a constitutional provision is more than six days.

Based on Section 36(a) that will exclude August 23 (the date of the Federal Court’s decision in Najib’s SRC appeal) from the calculation of the 14-day period, and based on Section 36(d) which would effectively mean the 14-day period covers calendar days (instead of just working days), the 14-day period from the date Najib’s conviction was upheld will be September 6.

In short: Najib has to file for either review or pardon by September 6, if he wants to remain as an MP despite his 12-year jail and RM210 million fine sentence.

3. Will there be a by-election if Najib is disqualified after 14 days?

Khoo said there would not be a by-election for Najib’s Pekan seat if he were to be disqualified now and under the current circumstances.

“No. Since the unexpired term of Parliament is less than two years,” he said, referring to the second proviso of the Federal Constitution’s Article 54.

“However, it is interesting to note that if the disqualification affects the majority of the government in Parliament, a by-election should proceed,” he said.

Also citing Article 54(1), Shanmuga said there would only be a by-election if Najib does lose his Pekan seat through disqualification, and if the vacancy then causes the ruling government to lose the parliamentary majority needed to form government.

“Since there are less than two years from the date Parliament has to be dissolved, then there is no need for an election unless the Speaker of the Dewan Rakyat notifies the EC that the numerical strength of the party that forms the majority in the Dewan Rakyat is affected by the vacancy.

“This is only after the disqualification takes effect, which is when the review application and petition for pardon is disposed of,” he said.

“If as a result of the vacancy, the current government loses its majority, then the Speaker will inform the EC and they must hold a by-election. Otherwise, it’s not required if less than two years to the next election.”

Under Article 55, Parliament will automatically be dissolved after five years from its first meeting (unless it is dissolved earlier), and a general election is required to be held within 60 days from its dissolution.

As the 14th Parliament of Malaysia first met on July 16, 2018, its five-year term should end on July 16, 2023, and the 15th general election (GE15) would then have to be held before or by September 2023.

In short: It is now only about one year to the next general election, which means even if the Pekan seat no longer has an MP if Najib does become disqualified, there would be no need for a by-election.

4. No more GE15 dreams for Najib?

Even if Najib pursues a review or pardon over his conviction, Khoo said Najib may not contest in the next general election, due to the constitutional provision of Article 48(5).

“For purposes of nomination or election, the disqualification takes immediate effect,” Khoo said.

Khoo explained that a petition for pardon will only delay disqualification as a sitting MP, but that it has no effect on disqualification for nomination or election.

Shanmuga also cited Article 48(5) when saying that Najib is immediately disallowed from becoming an election candidate after his conviction.

“He cannot contest in a by-election or any GE, since the delay in disqualification only applies to a sitting member, and not for purposes of nomination, appointment or election of an MP,” he said.

In other words, even if Najib files for a review or for pardon within the 14 days, he has already immediately lost the eligibility to contest in any elections, Shanmuga confirmed.

Under the Federal Constitution’s Article 48(5), a person is “immediately” disqualified from being nominated, elected or appointed to be a federal lawmaker in either the Dewan Rakyat or Dewan Negara, upon the person’s conviction and sentencing to a minimum one-year jail term or a minimum fine of RM2,000 and when no free pardon has been received.

In short: Najib could possibly keep his Pekan seat now. But once GE15 is called, he cannot be an election candidate for the Pekan seat, and will just be known as a former MP for Pekan.

Najib’s son Datuk Mohd Nizar Najib is the Pekan Umno Youth chief. Could this be a chance for him to contest in the seat which his father Najib has held for over four decades and which his grandfather Tun Abdul Razak Hussein had previously held?

5. When can Najib get back in the game?

Asked how long it would take for Najib to be eligible to stand for election again if he succeeds in either getting a review or a pardon, Shanmuga said: “If he gets a full/free pardon, then he is eligible to contest immediately as his conviction and sentence are wiped out.

“If his review application is allowed, typically that means he gets a re-hearing. Both the High Court and Court of Appeal granted him (very, very unusually) a stay of his conviction. Whether he can contest depends on whether the Federal Court, in allowing a review application, extends this stay of conviction,” he said.

Under Article 48(3), a person remains disqualified from being an MP for five years from the day he or she is released from imprisonment, unless this disqualification is removed by the Yang di-Pertuan Agong.

In PKR president Datuk Seri Anwar Ibrahim’s case, the Federal Court had in February 2015 upheld a five-year jail sentence against him due to alleged sodomy and he was midway into his jail term when he received a full royal pardon from the Yang di-Pertuan Agong on May 16, 2018.

Anwar was freed from jail and was then able to immediately contest in the by-election for the Port Dickson parliamentary seat on October 13, 2018 — without waiting for the five-year period to end as he had been pardoned. He won the seat.

In short: Even after Najib serves his jail term, he will not be able to immediately contest in general elections and has to wait for five years. But if he gets a pardon, he will be able to immediately run in elections.

6. Will Najib’s pensions still be paid?

Asked about what would happen to Najib’s pensions as an MP and former prime minister, Khoo said the issue might wait until any bid for pardon is decided upon.

The late DAP leader Karpal Singh was initially fined RM4,000 by the High Court in 2014 in a sedition case, but the Court of Appeal in 2016 reduced the fine to RM1,800 and the Federal Court in 2019 posthumously acquitted him of the sedition case.

The court proceedings were important in determining whether Karpal had been disqualified from his Bukit Gelugor MP post, since a fine of above RM2,000 would be enough to trigger disqualification as MP which would then mean the loss of pension. — Malay Mail