December 2021 Vol 1 No 5
  •  The issue of why after being convicted by the High Court on July 2020 for abusing power and misappropriating RM42 million from SRC International, and sentenced to a jail term of 12 years and a fine of RM210 million, former prime minister Datuk Seri Najib Razak is still an MP has perplexed the mind of your editor.
  • This perplexity continued when Najib still remains an MP, despite the recent verdict of the Appeal Court to uphold the decision of the High Court.
  • Realising he is a layman when it comes to the laws and legal stuff, your editor decided to have an informal conversation with his lawyer friend who is a criminal law practitioner to get to the bottom of the issue.
  • The criminal law practitioner explained that it all has to do with the exhaustion of the right of appeal, which is linked to the disqualification for membership of Parliament.
  • As long as the right of appeal – which is not automatic meaning the convicted MP must apply for an appeal – is not exhausted, the convicted MP remains an MP.
  • And this eligibility to remain an MP despite a conviction is enshrined in Article 48(4)(b) of the Federal Constitution, which has the provision that an MP would only be disqualified 14 days from when the court decides on the appeal, if he appeals the conviction or sentence within 14 days.
  • To understand this very simply, my friend who used to be a deputy public prosecutor and now in private practice, said Najib would have lost his MP-ship if he didn’t appeal the conviction or sentence within 14 days following the High Court’s conviction.
  • Similarly when the Court of Appeal upheld the decision of the High Court recently, he would have lost his MP-ship had he not appealed within 14 days of the Appeal Court’s decision.
  • Since he appealed, he will remain an MP throughout his upcoming appeal trial by the Federal Court (FC) until the FC decides on his appeal and rules whether he is guilty or not in the SRC case.
  • If it rules guilty, then 14 days after that decision, Najib will automatically be disqualified as an MP.
  • However, with his conviction by the High Court, regardless of whether he appeals or not, he is already disqualified from taking part in the 15th General Election (GE15) if GE15 is held anytime before the FC decides on his appeal.
  • This is provided for in Article 48(5) of the Federal Constitution, which states that a conviction is enough to disqualify an MP “for the purpose of nomination, election or appointment of any person to either House of Parliament”.
  • This means Barisan Nasional cannot field him as the candidate for Pekan or any other constituencies if GE15 is held before the FC decides on his appeal case.
  • But what happens if the FC later after GE 15 overturns the decision of the High Court? Then too bad for Najib, he just misses the boat as far as GE15 is concerned.
  • However, if GE15 is held after the FC decides on his appeal, and in the event the FC overturns the guilty decision of the High Court, then of course he can take part in GE15.
  • Going through the social media, the question of whether Najib is a convict or not has generated much controversy.
  • On the one hand, those who said he is not a convict argue that the stay of execution, which he has successfully obtained from both the High Court and the Court of Appeal shows that he is not a convict.
  • How can you call him a convict when he has not been to prison or made to pay the hefty fines? He is a free man pending his appeal and you cannot associate a free man with a convict because it will be a contradiction in terms.
  • Not so, says the opposite view. Once you are convicted of a crime, you’re a convict. The stay of execution does not change his status as a convict. It merely postpones the sentence, and neither does it nullify the guilty verdict nor the sentence.
  • Therefore, he remains guilty and the sentence remains intact until a Court of Appeal or the Federal Court overturns the guilty verdict. In this sense he is still a convict, so say those who insisted he is a convict pending his appeal.
  • The issue will become clearer if we approach it from the etymological perspective. This is because the word “convict” is both a verb and a noun.
  • To convict (verb) a person means “to decide officially in a court of law that someone is guilty of a particular crime”.
  • But a convict (noun) is “a person who has been judged guilty of a crime and is in prison as a result”, or “a person serving a sentence in prison”.
  • If being convicted alone is to be the criteria for a convict, then persons convicted and sentenced to non-custodial sentences should also be described as “convicts”. But they are not described as such.So from the etymological perspective, Najib is not a convict though it is true the stay of execution that he has successfully obtained from the court does not change his conviction in the sense that he is still guilty of the high crime that he was charged pending his appeal.
  • But this thing really is not so straightforward from the legal perspective. As explained by my learned friend, a person found guilty of an offence may not be convicted, such as in a situation when a court upon a mitigation did not impose a prison sentence to a person found guilty but instead put that person on a bond of good behaviour under Section 173A of the Criminal Procedure Code (CPC).
  • In this case, the court would not convict the person despite the guilty verdict. However, a bond under Section 294 of the CPC must record a conviction, hence making that person a convict.
  • Although Najib has been allowed a stay of execution pending appeal, his conviction is a matter of a public record, and thus he is a convict, and this status will remain so, until the Federal Court set aside his conviction.
  • As to why he was granted a stay of execution, there’s a provision under the CPC which gives discretionary power to the Court to grant this stay based on special or exceptional circumstances.
  • In the Najib case, to establish the special circumstances his defence counsel argued disallowing the stay would cause grave inconvenience and impinge on his right to defend himself in his other cases; and the hefty fine of RM210 million is unprecedented.
  • The High Court Judge, Justice Mohd Nazlan Mohd Ghazali then allowed the stay application, saying: “ I find the applicant has fully established special circumstances for the court to grant a stay of execution for the imprisonment and stay of the payment of the fine as well … I also ordered for the bail to be increased by another RM1 million with two sureties to be paid by tomorrow.”
  • Some bemoaned the fact unlike the High Court, the Appeal Court did not give the reasons for the stay in its judgment. Perhaps in this matter, the Appeal Court is in agreement with Justice Nazlan’s decision on the stay and did not feel the need to mention it in the judgement. After all, the decision on stay was not a matter before the Court of Appeal.

Read more on the Najib case:

Court of Appeal upholds guilty verdict

Najib’s conviction explained

Grounds for stay of execution could have been included

For high crime, please delink the appeal process from the disqualification of membership in Parliament!

  • According to the Merriam-Webster Legal Dictionary, high crime is “a crime of infamous nature contrary to public morality but not technically constituting a felony”.
  • In the US, it specifically means an offence that the US Senate deems to constitute an adequate ground for removal of the president, vice president, or any civil officer as a person unfit to hold public office and deserving of impeachment.
  • The charge of high crimes covers allegations of misconduct by officials. These include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office.
  • The charges against Najib fit this definition of high crime. Since he was charged when he was no longer a prime minister, the question of removing him as a PM does not arise.
  • But being an MP, the prospect of becoming a prime minister is always there, and Najib also has made it clear of this ambition to become the PM again. 
  • Nothing wrong in this just that it could create a situation of a conflict of interest under a scenario of becoming a PM amid a situation where his appeal trial is still in progress. 
  • This conflict of interest arises because the on-going appeal trial would involve someone who is going to be the prime minister or has become the prime minister. 
  • Would the Attorney General (AG) then be under intense pressure to drop the case? 
  • Lest someone would say that this is analogous to the Lim Guan Eng case, it is not. In Lim case, he hasn’t been convicted yet when he was appointed as the Finance Minister or when his case was dropped by the then AG.
  • As it is, the threshold laid down by the Constitution for the disqualification of MP is “imprisonment for a term of not less than one year or a fine of not less than two thousand ringgit”, according to Article 48(1)(e) of the Federal Constitution.
  • This covers both the lesser crime for instance imprisonment of three years or a fine of RM3,000, and high crime for example a jail term of eight years or a fine of RM20,000.
  • But the effective date of the disqualification is linked to the appeal process i.e. “14 days from the date on which such appeal or other court proceeding is disposed of by the court”. 

  • So to prevent such a scenario of a conflict of interest from happening, those involved in high crime and have already been convicted of it should be suspended from their MP position with immediate effect, regardless of whether they appeal or not.
  • Under the present situation, the suspension cannot be done because of Article 48(4)(b) which links the disqualification to the appeal process. If you can’t disqualify people because of the appeal process, what more suspending them!
  • But this legal impediment can be overcome via an amendment to the Constitution delinking the suspension from the appeal process, and specifying the minimum quantum of fine and term of imprisonment for high crime.
  • Once the Appeal Court or the Federal Court overturns the conviction, the suspension is rescinded with immediate effect, and the suspended MP resumes his or her duty as an MP.
  • This suspension does not affect the person’s right to appeal or the right to apply for a stay of execution.
  • Neither is it against the principle of natural justice because when it comes to taking part in a general election, a convicted MP is immediately disqualified from taking part in an election held before the Appeal Court or the Federal court decides on the appeal, which shows the delinking of the appeal process from the disqualification of taking part in an election.
  • What’s more, this disqualification from taking part in an election is rescinded with immediate effect upon the decision of the Appeal Court or the Federal Court in overturning the conviction. 
Read more on high crime:

Selangor, Selangor … what telah happened

  • When the headlines of the local and world media described last weekend’s flood as “the country’s worst flooding in years”, this description did not tell the full story.
  • A more accurate headline would be “the worst flooding in Selangor in years.”
  • It is quite telling that Prime Minister Ismail Sabri Yaakob in a media conference during the flood said: “It’s a bit chaotic in Selangor right now… in other states, preparations would be made earlier for the monsoon.
  • “But in Selangor, this happened almost suddenly,” adding that nearly 4,000 people in the state had been evacuated from their homes.
  • By the following Monday, news report said more than 10,000 people in the state had been displaced from their home due to the flood.
  • Authorities at Port Klang, the country’s largest harbour, said shipping operations were severely disrupted by the floods. Dozens of highways and roads were also closed.
  • Videos posted on social media showed overflowing rivers, landslides, and cars submerged on abandoned streets.
  • Floods in Malaysia are common during the annual monsoon season between October and March, particularly on the country’s eastern coast.
  • But the downpour that started on Friday morning and continued into Saturday hit worst in the western state of Selangor – Malaysia’s wealthiest and most populous region surrounding the capital Kuala Lumpur.
  • The writing is already on the wall since early this year when extreme weather events took place continuously from January till today in many parts of the world, with one op-ed posing a question on whether these extreme weather events were a harbinger of the worst flood in Malaysia (see A harbinger of the worst flood in Malaysia)
  • The op-ed written in August called for early preparation to be made in facing the possibility of a worst flood before the year-end monsoon season associated with flooding began.
  • Whereas news of flood-prone states like Kelantan, Terengganu and Pahang immediately began their rehearsals to prepare for the worst flood like drills on mobilising boats, and search and rescue, nothing of this is heard in Selangor.
  • No surprise then that many people were caught on rooftops and higher floor of their homes for many hours because no boats were available then.
  • It was only immediately after PM Ismail Sabri’s late night media conference that things started to get moving in helping the trapped victims.
  • The response of Malaysians in helping the flood victims is just incredible and praiseworthy – from donation drives, to providing shelter, and rescuing people including a cat from the rising water.

Let's Talk! PRESENTS:

The charges against former prime minister Datuk Seri Najib Razak in the SRC International case fit the definition of high crime, which is “a crime of infamous nature contrary to public morality but not technically constituting a felony”. But despite being convicted, Najib is still an MP. As the prospect for the former PM to become the PM once again is always there, JAMARI MOHTAR discovers this could create a conflict of interest because the appeal trial would then involve someone who is going to be the PM or could already become one. Would the Attorney General then come under intense pressure to drop the case?​

Delinking the appeal process from the disqualification of membership in Parliament!

By Jamari Mohtar

The Merriam-Webster Legal Dictionary defines high crime as “a crime of infamous nature contrary to public morality but not technically constituting a felony”.

In the US, it is seen by the Senate as adequate ground as an offence to remove the president, vice president, or any civil officer as a person unfit to hold public office and deserving of impeachment.

The charge of high crimes covers allegations of misconduct by officials, including ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office.

The charges against former prime minister Datuk Seri Najib Razak in the SRC International case fit this definition of high crime. Since he was charged when he was no longer the prime minister, the question of removing him as the prime minister did not arise.

But despite being convicted, Najib still remains an MP. The spectre of the former prime minister becoming the chief executive of the government once again is always there by virtue of being an MP.

Moreover, Najib also has made it clear of this ambition to become the prime minister again.

Nothing wrong in this ambition, just that it could create a situation of a conflict of interest under a scenario of becoming a prime minister amid a situation where his appeal trial is still in progress.

This conflict of interest arises because the on-going appeal trial would then involve someone who is going to be the prime minister or has become one. Would the Attorney General (AG) then be under intense pressure to drop the case?

Lest someone would say that this is analogous to the Lim Guan Eng case, it is not. In Lim case, he hasn’t been convicted yet when he was appointed as the Finance Minister or when his case was dropped by the then AG.

As it is, the threshold laid down by the Constitution under Article 48(1)(e) for the disqualification of MP is “imprisonment for a term of not less than one year or a fine of not less than two thousand ringgit”.

This covers both the lesser crime for instance imprisonment of three years or a fine of RM3,000, and high crime for example a jail term of eight years or a fine of RM20,000.

But the effective date of the disqualification is linked to the appeal process i.e. “14 days from the date on which such appeal or other court proceeding is disposed of by the court”, according to Article 48(4)(b) of the Constitution.

So to prevent such a scenario of a conflict of interest from happening, those involved in high crime and have already been convicted of it should be suspended from their MP position with immediate effect, regardless of whether they appeal or not.

Under the present situation, the suspension cannot be done because of Article 48(4)(b) which links the disqualification to the appeal process. If you can’t disqualify people because of the appeal process, what more suspending them!

But this legal impediment can be overcome via an amendment to the Constitution delinking the suspension from the appeal process, and specifying the minimum quantum of fine and term of imprisonment for high crime.

Once the Appeal Court or the Federal Court overturns the conviction, the suspension is rescinded with immediate effect, and the suspended MP resumes his or her duty as an MP.

This suspension does not affect the person’s right to appeal or the right to apply for a stay of execution.

Neither is this against the principle of natural justice. Otherwise the delinking of the appeal process from the disqualification of taking part in a general election through nomination, election or appointment of any person to either House of Parliament by mere conviction should also be construed as against the principle of natural justice.

By virtue of Article 48(5) of the Federal Constitution, which states that a conviction is enough to disqualify an MP “for the purpose of nomination, election or appointment of any person to either House of Parliament”, Najib has already been disqualified from taking part in the 15th General Election (GE15) if GE15 is held anytime before the FC decides on his appeal.

This means Barisan Nasional cannot field him as the candidate for Pekan or any other constituencies if GE15 is held before the FC decides on his appeal case.

But what happens if the FC later after GE 15 overturns the decision of the High Court? Then too bad for Najib, he just misses the boat as far as GE15 is concerned.

However, if GE15 is held after the FC decides on his appeal, and in the event the FC overturns the guilty decision of the High Court, then of course he can take part in GE15.

 

Regards,

Jamari Mohtar

Editor, Let’s Talk!

Let’s Talk! is a free, monthly e-mail service on current happenings in Malaysia brought to you by Usrafalah Sdn Bhd. It is edited and managed by a group of volunteers.

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