Is Section 6 of Constitution Amendment 1983 unconstitutional?

 

In 1983, our Parliament passed an amendment to Article 48 of the Federal Constitution, to include a new Article 48(4).

Prior to the amendment, Article 48 (1)(e) of the Federal Constitution provided for the following:

“Disqualification for membership of Parliament

48. (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.”

Read together with Article 50(1 )of the Federal Constitution, the outcome would have been rather straightforward.

Article 50(1) reads:

“If a member of either House of Parliament becomes disqualified for membership of that House his seat shall become vacant.”

In a nutshell, if a member of Parliament was convicted of an offence and sentenced to the threshold imprisonment or fine, he or she is disqualified as a member of Parliament and his or her seat shall become vacant.

Then came the Constitution (Amendment) Act 1983 [Act A566] which included, inter alia, Article 48(4)(b).

Section 6 of Act A566 included, inter alia, Article 48(4)(b) which states:

“(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) —

(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.”

What this means is that despite being convicted and sentenced, a member of Parliament does not become disqualified as a member of the Dewan Rakyat until the appeal against that conviction and sentence is disposed of. To be accurate, not until the expiry of 14 days after that appeal.

In India, Section 8(3) and 8 (4) of the Representation of People Act 1951 states:

"(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

(4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”

The common feature that Malaysia’s Article 48(4)(b) of the Federal Constitution and India’s Section 8(4) of the Representation of the People Act 1951 has is that there seem to be an automatic non-disqualification until the disposal of the appeal for members of Parliament that have been found guilty of offences.

However, in 2013, the Indian Supreme Court in the case of Lily Thomas v Union of India & Ors on 10 July, 2013, declared that Section 8(4) of the Representation of the People Act 1951 was unconstitutional as it was ultra vires the Indian Constitution.

The Supreme Court held:

“Thus, Article 101(3)(a) provides that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant and similarly Article 190(3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant. This is the effect of a disqualification under Articles 102(1) and 190(1) incurred by a member of either House of Parliament or a House of the State Legislature. Accordingly, once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) 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 under Article 102(1)(e) or Article 191(1)(e) of the Constitution”.

Article 50(1) of the Federal Constitution may be read in the same spirit and context with Article 101(3)(a) of the Indian Constitution.

This raises an interesting point of contention. If the Indian Supreme Court has struck down Sub-section 4 of the Representation of the People Act 1951 which, again may be read in the same spirit and context as our Section 6 of Act A566, would it not be high time for Malaysia to look into the striking down of Section 6 of Act A566 which would remove the amendment which gave birth to Article 48(4)(b) of the Federal Constitution?

It is humbly submitted that Section 6 of the Constitution ( Amendment) Act 1983 [Act A566] is ultra vires Article 50(1) as to use the words of the Indian Supreme Court, Parliament cannot make a provision as in Section 6 of the 1983 constitutional amendment act to defer the date on which the disqualification of a sitting member will have an effect and prevent his seat becoming vacant on account of the disqualification under Article 48(1)(e ).

Our Federal Court in the case of Indira Gandhi a/p Mutho vs Pengarah Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 held:

[92] Thus the amendment inserting cl (1A) in art 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Syariah Courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution.

[104] ...The powers of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial power under art 121(1). Such power is fundamentally inherent in their constitutional role as the bulwark against unlawful legislation and executive action. As part of the basic structure of the constitution, it cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation.

It is further humbly submitted that should there be a challenge to the constitutionality of the 1983 constitutional amendment, the Federal Court, on the strength of Indira Gandhi, definitely has the power and jurisdiction to determine the same and to bring back the supremacy of Article 50(1) of the Federal Constitution.

I stand corrected. 

In loving memory of my dearest late mother, Baby Manickam (Jan 4,1949 to Nov 23, 2015) - Mkini

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The views expressed here are those of the author/contributor, Puthan Perumal and do not necessarily represent the views of MMKtT.