With SRC convictions stayed, Najib still ineligible to contest elections - law experts
Despite Najib Abdul Razak having secured a stay on his criminal convictions in the SRC International case, the former premier is still not eligible to contest in an election pending disposal of his appeal at the Federal Court.
This is according to several constitutional experts and lawyers when contacted by Malaysiakini today.
Universiti Malaya's Shad Saleem Faruqi said that while Najib (above) can remain as the Pekan MP, he is disqualified from standing in an election according to the Federal Constitution.
"He remains an MP until his appeal or petition for pardon is disposed of. This is provided in Article 48(4)(b) of the Federal Constitution.
"But he is immediately disqualified for nomination, election or appointment to either House if he is convicted and sentenced to one-year imprisonment or a fine of 2,000. This is provided in Article 48(5)," Shad Saleem said in a text message.
He added that Najib's "only remedy" to get to stand for election is by getting a full pardon before nomination day.
Last year, the Kuala Lumpur High Court found Najib guilty on seven corruption-related charges involving a total of RM42 million SRC International funds and sentenced him to 12 years jail and a RM210 million fine.
That judgment was upheld by the Court of Appeal in a unanimous decision last week, after a panel of three judges heard Najib's appeal.
The Court of Appeal, however, granted Najib a stay of conviction and execution of his sentence pending disposal of his appeal at the Federal Court.
This was verified by both the prosecution and Najib's lawyers when contacted, as well as a review of journalists' notes from court that day in which the bench allowed the defence's application for a stay on execution and conviction.
Following this decision, a question has been raised on whether this means that the Umno politician would still be eligible to contest in the next election, with prominent lawyer Haniff Khatri urging the Court of Appeal to clarify the matter.
Haniff, have you confirmed yet?
Senior lawyer Salim Bashir Bhaskaran also holds a similar view, saying the stay of conviction granted to Najib does not have an effect on his disqualification as an MP.
"Article 48(4) said that an MP does not need to vacate his seat pending disposal of his appeal.
"However, when it comes to the question whether the said convicted MP can contest in an election, we have to refer to subsection 5 of the Article.
"The subsection stated that someone who has been convicted cannot be elected into Parliament. They cannot even be nominated.
"Even with a stay of conviction, it does not have effect on this (provision). It clearly says that one cannot become an MP and it takes effect immediately," he said.
Another lawyer, Syed Iskandar Syed Jaafar Al Mahdzar, said a stay order does not mean that Najib's conviction was "washed off".
According to him, there was a test case in India, when the then prime minister Indira Gandhi was convicted of electoral offenses by the Allahabad High Court.
"Indira was convicted of election offenses by the Allahabad high court. She applied and got a stay of conviction and sentence.
"She later told the India Supreme Court that her conviction has been stayed and thus she could contest in the election.
"However, the Supreme Court said no, because the stay was only pending appeal. And it does not mean that the conviction is washed off."
Meanwhile, Najib's defence counsel Muhammad Shafee Abdullah when contacted said he was not instructed to comment on whether the former premier can contest in an election.
However, he stressed, their main concern in applying for the stay of conviction was his position as an MP.
"So with the stay, he remains as an MP.
"Election is another story, because he hasn't decided anything," Shafee said.
"Article 48(4) said that an MP does not need to vacate his seat pending disposal of his appeal.
"However, when it comes to the question whether the said convicted MP can contest in an election, we have to refer to subsection 5 of the Article.
"The subsection stated that someone who has been convicted cannot be elected into Parliament. They cannot even be nominated.
"Even with a stay of conviction, it does not have effect on this (provision). It clearly says that one cannot become an MP and it takes effect immediately," he said.
Another lawyer, Syed Iskandar Syed Jaafar Al Mahdzar, said a stay order does not mean that Najib's conviction was "washed off".
According to him, there was a test case in India, when the then prime minister Indira Gandhi was convicted of electoral offenses by the Allahabad High Court.
"Indira was convicted of election offenses by the Allahabad high court. She applied and got a stay of conviction and sentence.
"She later told the India Supreme Court that her conviction has been stayed and thus she could contest in the election.
"However, the Supreme Court said no, because the stay was only pending appeal. And it does not mean that the conviction is washed off."
Meanwhile, Najib's defence counsel Muhammad Shafee Abdullah when contacted said he was not instructed to comment on whether the former premier can contest in an election.
However, he stressed, their main concern in applying for the stay of conviction was his position as an MP.
"So with the stay, he remains as an MP.
"Election is another story, because he hasn't decided anything," Shafee said.
Not necessarily good for Harapan.
ReplyDeleteIf he is not a candidate for GE15, it frees Bossku up to roam the country as a Super Campaigner for UMBO.
There is a body of legal opinion in India that holds that Indira Gandhi's disqualification from contesting the elections was a highly politicised one, selective prosecution.
ReplyDeleteJust like Bossku in Malaysia, half the country considered (and still considers) Gandhi as a Saint, to other half of India she was an Evil Witch.
I agree with your take on Indira Gandhi
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