Why Najib is Not Disqualified From Parliament Despite Conviction & Other Similar Past Examples

Najib Razak’s conviction of 7 charges in Kuala Lumpur High Court marked a historic day for Malaysia as it made him the first former Malaysian Prime Minister to be found guilty of a criminal offence.

The charges against the former Prime Minister during the SRC International trial include offences for:

• Abuse of power 
• Criminal breach of trust (CBT)
• Money laundering 

Those familiar with the Malaysian judicial system would know that this doesn’t mean the end of the SRC International trial. Not even close!

As the case was first heard in the High Court, Najib can appeal his convictions to the Court of Appeal. Furthermore, if the Court of Appeal upholds the decision, he can then appeal to the Federal Court as a final resort. 

As the old saying goes, justice is a slow and laborious process. 

In the immediate aftermath of this verdict, however, many Malaysians would be wondering:

Will Najib lose his seat in Parliament? 

Wait, does that mean there’s gonna be a by-election in Pekan soon?

The answer is no, he is still the legitimate Member of Parliament for Pekan.

However, if a General Election happens anytime soon, Najib will be ineligible to contest. Why is that so? Let’s examine the relevant laws governing the disqualification of MPs and past examples to find out.

1. Article 48 of the Federal Constitution

The highest law of the land, the Federal Constitution deals specifically with the disqualification for membership of Parliament in Article 48. In this case, Article 48 (1)(e) is the most relevant to Najib’s situation.

Article 48 of the federal constitution

Based on the SRC International trial verdict, it may look like Najib has been disqualified as an MP as his sentence is well above the RM2,000 fine and 1-year imprisonment threshold Article 48 (1) prescribes:

• Section 23 abuse of power: 12 years jail term and RM210 million fine 
• CBT: 10 years jail term each 
• Money laundering: 10 years jail term each 

All of the sentencing above will run concurrently, so it would be 12 years in total plus an additional 5 years if he fails to pay the fine. Najib’s lawyer has already said that he is unable to pay the fine since he also has to pay a whopping RM1.6 billion of taxes, as reported by The Edge.

However, as the appeals process for the case is yet to be exhausted, Najib can still serve as a Member of Parliament as per subsection 4 of the same Article. 

Article 48 subsection 4 of the federal constitution

Specifically, Article 48(4)(b) dictates that if an MP appeals the sentence within 2 weeks (which Najib’s council has already done), he or she would only be disqualified 14 days after the court decides on the appeal.

Meaning that as long as Parliament is not dissolved, Najib will remain as an MP until his final appeal for his conviction. This was confirmed by Dewan Rakyat Speaker, Datuk Azhar Harun yesterday. 

In fact, Najib is not the first MP to be convicted in court and still hold a seat in Dewan Rakyat. Here are other examples:

i) Anwar Ibrahim

Anwar in front of the federal court in 2014 | source: straits times

• Anwar was still the Permatang Pauh MP when he was convicted in the Court of Appeal for sodomy on March 7, 2014.
• He kept his seat until February 10, 2015, when the Federal Court sentenced him to jail.

ii) The late Karpal Singh

The late karpal singh in 2014 | source: asiaone

• Karpal Singh was Bukit Gelugor MP when he was fined RM4,000 in March 2014 for a sedition offence he made in 2009.
• Although it’s above the threshold for being disqualified as an MP, Karpal still remained in Dewan Rakyat because he hasn’t exhausted his appeals.
• Karpal tragically died one month later and in 2016, the Court of Appeal posthumously reduced the fine to RM1,800 so that his widow would get her late husband’s pension.
• Last year, his case was overturned posthumously by the Federal Court.

2. Article 48 and Elections (Conduct of Elections) Regulations 1981 disqualifies him from candidate nomination

However, as of yesterday’s conviction, Najib may no longer contest in a Malaysian election until he either wins his appeal or 5 years after he has served his sentence.

Subsection 5 of Article 48 prescribes that:

Hence, Najib is now “immediately” disqualified from being nominated, or contesting in elections or being appointed to either the Dewan Rakyat or Dewan Negara.

This ban lasts for 5 years as per Article 48(3):

Furthermore, regulation 7 (d) of Elections (Conduct of Elections) Regulations 1981 will also bar Najib from contesting:

This was notably the case for two other MPs in the last decade:

i) Anwar Ibrahim (again)

Anwar during a press conference in 2014 | source: yahoo news

• While waiting for Federal Court to hear the appeal on his sodomy case, Anwar was the Permatang Pauh MP in 2014.
• Concurrently, there was a by-election for the Kajang State Legislative Assembly (DUN) seat the same year.
• Anwar was barred by the Election Commission (EC) from contesting that seat due to his conviction in the Court of Appeal.

ii) Tian Chua

Tian chua in 2018 | source: astro awani

The case of Tian Chua was rather intriguing, given that the EC gave a different understanding of the Federal Constitution than the Courts and Parliament.

• Tian Chua was the Batu MP from 2008 until 2018.
• In 2010, he was convicted by the High Court for biting a police officer and fined RM3,000.
• However, the fine was reduced to RM2,000 so that it won’t affect his seat in Parliament and Tian Chua accepted and never appealed the decision.
• In 2011, then Dewan Rakyat Speaker Pandikar Amin ruled that Tian Chua remains as Batu MP as RM2,000 fine was below the threshold for disqualification.
• However, during nomination day for GE14, Tian Chua was rejected because EC said his fine is above the threshold, because the Constitution said “not less than RM2,000” and RM2,000 disqualifies him.
• Of course, this was all rather controversial as the High Court in 2010 ruled that Tian Chua would only be disqualified if the fine was RM2,001 and above and not from RM2,000.

Nevertheless, the correct precedent has been set in 2019 when the High Court ruled in his favour and overturned the EC’s decision.

Tian chua’s nomination denied during ge14 | source: berita harian

Hope this clarifies why a person having being found guilty in court can still serve as an MP. After all, it is his duty as the elected representative for Pekan to speak on behalf of his constituents.

Of course, it would be kind of awkward to go to Parliament as a convicted former Prime Minister. But then again, malu apa bossku?

Also read: Najib Can Still Perform Functions As MP Even After Being Convicted, Says Dewan Rakyat Speaker