[1] Legal and moral outrage

According to Speaker of the House of Representatives, Tan Sri Azhar Azizan Harun, Article 48 (4) of the Federal Constitution, allows Najib, a convicted criminal, to sit in parliament.

This is because Najib, according to some lawyers, has filed a petition for a royal pardon.

So long as the King has not decided the fate of His petition, Najib, it is said, can thus continue as an MP.  

To allow a criminal to sit in Parliament when article 48(1)(e) clearly disqualifies him, especially when he has not obtained any ‘free pardon’ from the King, creates a sense of legal and moral outrage.

[2] Is Article 48(4) unconstitutional?  Can it be attacked in a court of law?

In my view, the answer is a firm, ‘Yes’.

The 1983 amendment, enacted by the Mahathir government, is unconstitutional, and contrary to Article 50 of the Constitution.

It is nothing more than a bed of straws, which can be washed away by strong judicial currents.

[3] We start with Article 48(1)[e] and 50 of the Federal Constitution

If an MP is convicted of a criminal offence, and is sentenced to imprisonment for a period of two years or more, or alternatively, is fined RM2,000.00 or more, he is ‘disqualified’ from being an MP. 

This is what Art 48(1)[e] says.

[4] But Article 50 of the Constitution vacates Najib’s seat

Art. 50 states that if an MP, ‘becomes disqualified his seat shall become vacant’.  

Note the imperative word, ‘shall’. It is an absolute concept. Art. 50 is not ‘subject to any other provision, especially Art. 48(4).

It is also determinative. It allows no other alternative meaning.

So Najib’s seat has become vacant. 

There are no two ways about it.

Yet Article 48(4), which is a later amendment, starts off with these words:

‘Notwithstanding anything contained in … this Article …

Meaning, this exclusionary clause, knocks off the ‘disqualification’ in Article 48(1)[e]

It concludes with these words…

“(c) if within [14 days]… there is filed a petition for a pardon,…’

then

‘such disqualification shall take effect… upon the petition being disposed of’.

So, as long as the King has not made a decision on Najib’s petition, a convicted MP can sit in parliament.

If you have been listening carefully, you will notice that Art. 48(4) does not ‘knock off’ Article 50, which mandatorily makes Najib’s seat ‘vacant’.

So can the amendment in Art 48(4) survive the destructive power of Article 50?

But first, we start off by studying Mr Puthan Perumal’s argument in a 2021 article

Mr Puthan Perumal is a Malaysian lawyer. 

In 2021 he wrote a brief, but brilliant, article about this very issue.¹Convicted MPs seat not vacant: Is sec. 6 of the Constitution Amendment Act 1983 unconstitutional, 2021[2] MLJ lviii

It helps us a great deal. I will dissect it for you.

He explains that any amendment to the Constitution must be effected by the passing of an Act of Parliament, called a ‘Constitutional (Amendment) Act’.  

[5] In 1983, a new clause (4) was inserted into Article 48 by the 1983 Constitutional (Amendment) Act.  

Mr Puthan argues that this 1983 Amendment Act was unconstitutional. 

Mr Puthan provides an example, and a legal ‘precedent.’

[6] In 1951, the Indian Parliament passed a similar Act. 

It was called the Representation of the People Act of 1951.

Exactly like Art 48(1)(e), there is a constitutional clause in India, in Articles 101(3) and Art 102 [e] of the Indian Constitution.  

The Indian Article 101(3) reads:

‘If a member of either house of parliament

 (a).   becomes subject to any of the disqualifications,²mentioned in clauses (1) or (2) of Article 102  …. his seat shall thereupon become vacant.’

[7] Does that sound familiar?

The Indian Article 102(e) reads:

‘A person shall be disqualified for being chosen as, and for being, [an MP]… [e].  if he is so disqualified by … any law made by Parliament.’

Thus in India, under sec.8(3) of the Representation of the People Act 1951, if an MP is convicted of an offence and sentenced to imprisonment for two years or more, he is disqualified from being, or becoming an MP, for six years from his release from prison.³under sec. 8(3) of Representation of the People Act 1951

Sections 8(3) and 8(4) of the Indian Act bear an uncanny resemblance to our Article 48(4).

Put simply, if a convicted Indian MP has appealed against his conviction,⁴or has ‘applied for a review of his case’ … then until the appeal or the application had been ‘disposed of’, the convicted MP could sit in Parliament.

[8] The Malaysian Article 48(4) says exactly the same thing

But there is a slight change of words.

Our legislators have substituted the words ‘appeal’ in the Indian Act, with the words, ‘a petition for a pardon’.

The phrase in the Indian Act, that ‘until that appeal or application is disposed of by the court’  have been substituted in Malaysia, by the words, ‘upon the petition being disposed of’.

So, until Najib’s petition for a pardon has been disposed of. He can continue as an MP.  

[9] So what did the Indian Courts think of their constitutional clauses that we have mirrored in Malaysia?

Two public interest writ petitions in India challenged these amendments, in a case called Lily Thomas v Union of India.⁵ [2013] 4 MLJ 463 (SC)

There, Mr. Fali Nariman, later a Supreme Court Judge in India, argued that because an MP became automatically disqualified,⁶if he was sentenced upon the relevant criminal sanctions, [i.e. being convicted of a criminal offence and had been sentenced to a period of imprisonment of not less than two years] his seat automatically fell vacant, and could ‘not be revived’ by a later amendment. 

He cited articles 102(1) and 191 of the Indian Constitution.

Mr Puthan argues, that thus the 1983 Constitutional Amendment Act, being a Parliamentary Act, could be attacked for being ‘unconstitutional’.

[10] A close reading of the Indian Supreme Court case shows that the Supreme Court went further

It not only attacked the principal Act. 

It even knocked out any Constitutional Amendment for being ‘ultra vires’ the Constitution. 

What it said bears repetition:  (I have redacted the sentences)

I quote:

“Thus, Article 101(3)(a) provides  that if a member of either House of Parliament 

becomes subject to any of the disqualifications…, his seat shall thereupon become vacant…”

…

Accordingly, once a person who was a member of either House of Parliament,⁷or House of the State Legislature … becomes disqualified by or under any law made by Parliament … and 191(1)(e) of the Constitution

his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution

… and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification … of the Constitution.

[11] The principle, is, therefore,  that the Malaysian 1983 Amending Act fell foul of Article 50 of the Malaysian Constitution.

A similar argument succeeded in Malaysia before the Federal Court in Indira Gandhi Mutho v. Pengarah Agama Islam Perak & Ors.⁸ [2018] 1 MLJ 545

[12] There is a second limb that I would like to add to Mr Puthan’s article:

Article 48(4) only excludes the disqualification in Article 48(1)[e] by these exclusionary words:

‘Notwithstanding anything contained in the foregoing provisions of this Article …

[meaning this exclusionary clause knocks off the disqualification in Article 48(1)[e]].

It does not say a word about Article 50, which quite emphatically states, Najib’s seat “shall fall vacant”.

Najib’s seat, has, therefore automatically fallen vacant.

Then we move on to the Third Point:

Thomas Jefferson, was a famous US Statesmen and constitutionalist. 

He once said that the constitution must go, “hand in hand with the progress of the human mind”.

That brings to mind another case, where this Jeffersonian concept was utilised by a brilliant lawyer.

[13] The story of an unknown Keralite Monk

In 1973, a Keralite Hindu monk, Kesavananda Bharathi, changed the face of constitutional law in the Commonwealth.

In 1951, before the dispute arose in his case, the Nehru administration proposed widespread land reform.  

Indian courts had jealously opposed laws breaching the fundamental rights of citizens.  Nehru found this rather inconvenient. 

So, the Indian Parliament amended the Constitution.⁹The Ninth Schedule was enacted with the original aim of preventing the courts from stopping the Nehru government’s land reform policy.

The amendments ‘immunised’ some land laws from being attacked in any court,¹⁰The Indian Parliament added the Ninth Schedule to the Constitution in 1951. It protected certain laws against judicial review. Under Article 31, laws placed in the Ninth Schedule could not be challenged in a court of law on the ground that they violated the fundamental rights of citizens  even if fundamental rights were infringed. 

This cloak of ‘constitutional immunity’ covered over 250 state laws.¹¹Some tenancy systems were also abolished  One such law controlled the size of land holdings.

In 1963, the State Government Kerala passed a law by which it acquired lands belonging to Kesavananda’s monastery.¹²Kerala Land Reforms Act of 1963 (as amended in 1969).

Kesavanda asked a famous lawyer to help him. 

The lawyer was none other than Nanabhoy ‘Nani’ Palkhivala. Palkhivala was a legend in his time. His memory continues to animate the Indian legal mind.  

His legal prowess, it has been acknowledged, made him more famous in India, than that of the famed English judge, Lord Denning.

Palkhivala filed a case, called: Kesavananda Bharati v. The State of Kerala.¹³ Kesavananda Bharati v. The State of Kerala  AIR [1973] SE1461, (1973) 4 SCC 225

Before a special Supreme Court panel of 13 judges, Palkhivala argued that the right to own and hold land was a fundamental right, protected by the Constitution.¹⁴ Kesavananda Bharathi complained that his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31) were breached.

He said the Indian Parliament had no power to amend the constitution so as to take away such fundamental rights.

The 1951 Constitutional amendments, he famously postulated, 

‘Tore … the very fabric of the Constitution.’

In a 700-page judgement, by a slim majority of one, the Indian Supreme Court ruled that the ‘basic structure’ of the Constitution could not be violated. 

The Court said:

‘Any part of the Constitution may be amended by following entrenched procedure’¹⁵In the Indian Constitution the machinery is provided in Article 368 but … 

‘no part of the Constitution may be so amended as to 

‘alter the basic structure’ of the Constitution. 

‘It is unamendable.’

[14] Nehru’s daughter’s Challenge

Indira Gandhi was Nehru’s daughter. She was elected as the prime minister of India in January 1966. Mrs Gandhi held that post, in her first stint, until 1977.

In 1975, she was convicted of breaching election laws. The Court that convicted her banned her from politics for six years.

So, to retain power, she demanded that the Indian Constitution be amended. Her proposed amendment gave her, as incumbent PM, immunity against all criminal proceedings.

Raj Narain, an Indian freedom fighter, challenged Mrs Gandhi’s proposed Bill.¹⁶ Indira Nehru Gandhi vs. Raj Narain 1975 (Supp.) SCC 1)

So Mrs Gandhi argued that the Kesavananda Bharati ruling had to be overturned. Eventually, the Supreme Court struck down Gandhi’s constitutional amendment, for violating the principle of free elections and the rule of law, because of the 1973 Kesavananda ruling.

Mrs Gandhi’s government dropped the Amendment Bill.

[15] That landmark ruling has stood the test of time.

The Supreme Court of India has since continuously affirmed ‘the basic structure’ doctrine.  

Asian Courts in the Commonwealth system have also adopted the Basic Structure principle enunciated in Kesavananda Bharati.¹⁷ In Malaysia, in:  Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356; Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] MLJU 13; [2021] 1 MLJ 750; [2021] MLJU 12; [2021] MLJU 15 and Datuk Seri Anwar Ibrahim v Government Of Malaysia & Anor [2020] MLJU 231.

In Singapore, in: Ravi s/o Madasamy v Attorney-General and other matters [2017] SGHC 163 [2017] 5 SLR 489; Teo Soh Lung v Minister For Home Affairs & Ors [1989] 1 SLR 499; Yong Vui Kong v Public Prosecutor [2015] SGCA 11 [2015] 2 SLR 1129; Cheng Vincent v. Minister For Home Affairs & Ors [1990] 1 SLR 190; Teo Soh Lung v Minister Of Home Affairs & Ors [1990] 1 SLR 40; Wong Souk Yee v Attorney-General[2019] SGCA 25 [2019] 1 SLR 1223

[16] Why is the Kesavananda Bharathi case important for our discussion?

This is because one cannot use the proceedings in Parliament (e.g. the two-thirds majority)  to carry out an amendment which is repugnant to the rule of law and Article 50: i.e. to allow a criminal who has prejudiced the people, to sit in an assembly elected by the people, from whom Najib took away billions of ringgit.

Thus, taking the Kesavananda Bharathi principle to its logical conclusion, the 1983 amendments to article 48 by the insertion of clause 4, ‘altered’ the ‘basic structure’ of the Constitution.

And it was ultra vires the constitution.

Any such ‘Mahathirian amendment’,  can be said to be, illegal, unconstitutional and therefore, void.

[17] Conclusion

Will the Prime Minister or members of the Dewan Rakyat [House of Representatives] have the courage to revert the Constitution to its original state, or will they fall at the feet of their political masters?

That question now confronts the Cabinet, and members of the House of Representatives.

What remains to be seen is if any public-spirited litigant will file a case challenging the 1983 amendment.