This is part of an ongoing series which aims to discuss the Federal Constitution and how it applies to Malaysians.
Today we explore Article 48(1)(e) of the Federal Constitution: Disqualification for membership of Parliament. From our research, Parliamentary membership is one of the few careers where you can lose your job for not wearing a mask.
In short, we will be discussing the following:
a. The threshold for disqualification on conviction;
b. The mask and the MP;
c. Stay of disqualification.
A. THE THRESHOLD FOR DISQUALIFICATION
The threshold is simple. Article 48 sets out that a member of Parliament is disqualified if:
“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;
So, the ingredients are:
1. Conviction of an offence (so a criminal conviction)
2. The sentence for the conviction must be at least one year
and at least RM 2,000.00 ringgit.
But is it RM 2,000 and more or is it only for a fine of RM 2,001 and above?
The main example is that of former Batu MP, Tian Chua. Tian Chua was disqualified by the Election Commission in 2018 for having a fine of RM 2,000.00[1]. On a literal reading of Article 48, it could be understood that RM 2,000.00 would disqualify a person from being a Member of Parliament. This resulted in Tian Chua not being able to contest his seat for the 2018 election.
In fact, this had been used as a mitigating factor by several Members of Parliament in the past. These include the esteemed late Karpal Singh[2] and, most recently, Tengku Adnan[3]. It is interesting to note that in Karpal Singh’s case, the Court actually took note of this and in light of his long years of service in law and in Parliament, actually allowed a fine of RM 1,800.00 to ensure that he did not fall foul of Article 48.
Nevertheless, the courts have now ruled it is only for fines above RM 2,000.00 that would disqualify a person from being a Member of Parliament.
B. THE MASK AND THE MP
Recently, the Pasir Salak MP, Datuk Seri Tajuddin Abdul Rahman was fined for not following COVID-19 Standard Operating Procedures (“SOPs”). He was fined RM 1,500.00[4].
What is interesting is that he was fined for attending Parliament without a mask, Just a few days before Parliament was vacated for COVID-19 positive cases. This was also not his first time not wearing a mask in a public setting. So how does this relate to disqualification?
Former Inspector General of Police, Abdul Hamid Bador had informed the public that individuals who repeatedly breached SOPs and who could trigger the spread of COVID-19 could be liable for the RM 10,000.00 fine[5]. Thus, in theory, for repeated breaches, the Pasir Salak MP could be disqualified from being a MP. No mask, no more MP.
C. STAY OF DISQUALIFICATION
Article 48 goes on to state that such a disqualification will cease after five years from the date of the sentence or conviction.
(3) The disqualification of a person under … paragraph (e) of Clause (1) may be removed by the Yang di-Pertuan Agong and shall, if not so removed, ceaseat the end of the period of five years beginning with the date … or, as the case may be, the date on which the person convicted as mentioned in the said paragraph (e) was released from custody or the date on which the fine mentioned in the said paragraph (e) was imposed on such person….
Therefore, once convicted, a person is disqualified for five (5) years unless removed by the Yang Di-Pertuan Agong.
However, the Constitution further sets out what would happen in the event a convicted person puts forward an appeal.
“(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
(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.”
Datuk Seri Najib Razak is a walking example of this. He is still the sitting member of Pekan. If we were to follow the letter of the law under Article 48, there should have been a by-election for Pekan. However, seeing as he has put forward an appeal for his conviction, the disqualification will only take effect 14 days after the disposal of his appeal if his conviction were to be upheld. Thus, the longer the appeal takes, the longer he can stay in office.
But Article 48(4) goes further. In the event the Pekan MP loses his appeal, if he or his representatives files a petition for a pardon from the Yang Di-Pertuan Agong, he would only be disqualified after the Agong has heard and dismissed the petition. Therefore, the disqualification can be stayed for a longer period of time.
Nevertheless, the fact remains that as Datuk Seri Najib Razak has been sentenced to a fine of more than RM 2,000.00, he is still liable to being disqualified pending the status of his appeal.
In short, a Member of Parliament can be disqualified for being convicted of a crime AND sentenced to more than a year in prison or a fine of RM 2,001 and above. While MPs may be given preferential treatment on the fines and sanctions imposed for not following SOPs as compared to the man on the street, we would still advise that Members of Parliament wear their mask to avoid triggering Article 48 of the Federal Constitution.
Reference: [1] Chua Tian Chang v Anwar Mohd Zain & Anor [2018] MLRHU 447 [2] Karpal Singh Ram Singh V PP & Another Appeal [2017] 3 MLRA 303 [3] PP v Tengku Adnan Tengku Mansor [2020] MLRHU 1904 [4] https://www.malaymail.com/news/malaysia/2021/07/27/repeat-offender-tajuddin-fined-for-ditching-mask-amid-covid-19...this-time/1993087 [5] https://www.malaysianow.com/news/2021/02/27/rm10000-fine-not-for-all-sop-offences-top-cop-explains/
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