KUALA LUMPUR (Aug 24): Datuk Seri Najib Razak, now serving a 12-year jail sentence along with a RM210 million fine after the Federal Court upheld his conviction on Tuesday (Aug 23) in the SRC International Sdn Bhd trial, may file for clemency within 14 days of his conviction in order to keep his Pekan parliamentary seat, but is unlikely to be able to defend and contest in the 15th general election (GE15) until a pardon is granted.
The GE15 will have to be called by September 2023, following the last general election on May 9, 2018, and the first 14th Parliament sitting in July 2018.
Senior lawyer Datuk Malik Imtiaz Sarwar said that based on Article 48 (4) (a)(i) of the Federal Constitution, the disqualification will take effect upon the expiry of 14 days from the date of the conviction and sentence.
“However, if within the said period of 14 days, ‘an appeal or any other court proceeding is brought in respect of such conviction and sentence’, the disqualification takes effect upon the expiry of 14 days from the date such appeal or court proceeding is disposed of by the court, under Article 48(4)(b).
“Herein, ‘any other court proceeding’ seems wide enough to cover a review application [of the Federal Court's decision],” he told theedgemarkets.com when contacted.
On Tuesday, Hisyam Teh Poh Teik — Najib's lead counsel in the final appeal — indicated the possibility of filing a review of the apex court decision, as he sought a stay of the sentence.
However, Chief Justice Tun Tengku Maimun Tuan Mat indicated that the apex court cannot stay a sentence upon a review application.
A review can be filed under Rule 137 of the Federal Court Rules 1995, which recognises the apex court's inherent power to, among other things, review previous decisions made by an earlier apex panel in order to prevent an injustice or an abuse of process.
However, such a review process, which would have to comprise a different bench, is rarely granted as it would have to gain leave (permission) first.
Article 48 (1)(e) of the Federal Constitution stipulates that a person is disqualified from being a member of either house of Parliament if he has been convicted of an offence by a court of law in the Federation and sentenced to imprisonment for a term of not less than one year, or to a fine not less than RM2,000, and has not received a free pardon.
Malik said the disqualification of a Member of Parliament or state assemblyman may be removed by the Yang di Pertuan Agong or the ruler under Article 48 (3), and this can be done by filing a petition for a pardon under Article 42.
“If a petition for a pardon is filed within the period of 14 days from the date of the conviction and sentence, or after the disposal of any appeal or court proceeding brought in respect of the conviction and sentence, the disqualification takes effect only upon the petition being disposed of, under Article 48(4)(c).
“The matters above do not apply as stated in Article 48 (5) for the purpose of nomination, election or appointment of any person to either house of Parliament (or the State Legislative Assembly), for which purpose the disqualification shall take effect immediately upon the conviction and sentence. In other words, Najib won't be able to stand for the election [as a result of this],” the senior counsel added.
Lawyer New Sin Yew shared a similar view in a tweet, saying Najib's status remains intact for the next 14 days.
“If there is no petition for a pardon within the next 14 days, then he will be disqualified. If Najib applies for a pardon, he will remain as an MP until and unless the pardon is denied,” New tweeted on Tuesday.
Normally, clemency or pardons would have to be decided by the Pardons Board as stipulated in Article 42 (5), and in the case of the Federal Territory, it consists of the Yang di Pertuan Agong, the Attorney General, the prime minister and three other members appointed by the ruler, who would sit and decide on a case-to-case basis.
However, it is to be noted that besides the SRC case, in which Najib has already been convicted and sentenced, the former prime minister and ex-finance minister is facing ongoing trials with regard to the 1Malaysia Development Bhd (1MDB)-Tanore case and the 1MDB audit report tampering case.
He also faces two other trials, which have yet to begin, namely the RM27 million SRC money-laundering case and six counts of criminal breach of trust involving RM6.6 billion of government funds following payments to the Abu Dhabi-based International Petroleum Investment Company.