Rocky road ahead for Anwar

(The Star) – Datuk Seri Anwar Ibrahim (pic) will have to be voted into the Dewan Rakyat before he can be appointed as prime minister, according to the Federal Constitution.

Constitutional lawyer Syahredzan Johan said that to get into the Dewan Rakyat quickly, Anwar will first have to receive a royal pardon as per Article 48 of the Constitution, which provides that a person jailed for not less than one year or fined no less than RM2,000 is disqualified from being a member of either the Dewan Rakyat or the Dewan Negara, unless a free pardon is granted.

“Under Article 48, the disqualification shall only cease to operate five years after the disqualified person is released from custody.

“So in Anwar’s situation, his disqualification can only be lifted five years after he is released from prison, unless he receives a royal pardon or if the disqualification is removed by the King,” he said when contacted.

“This means the prime minister cannot come from the Senate, so someone will need to resign their Parliament seat, and Anwar will need to contest and win that seat, after the disqualification is lifted.

“If he wins, then the Pakatan Harapan government can propose his name as prime minister,” he added.

By convention, the deputy prime minister will take over the premiership if the top leader resigns, but Syahredzan said there is no legal requirement for Anwar to become deputy prime minister before Pakatan’s existing prime minister candidate Dr Mahathir steps down.

“A win by a simple majority is enough. At the end of the day the crucial question is, who has the confidence of the majority of MPs. Not who is deputy prime minister,” he said.

International Islamic University Malaysia law lecturer Assoc Prof Dr Shamrahayu Abdul Aziz said Anwar will need to end his disqualification for membership of Parliament if he wants to assume the prime minister’s position.

“A person can remove the five-year disqualification as stated under Article 48(3) of the Federal Constitution.

“So it is not about obtaining a royal pardon but rather, removing the disqualification for membership of the august house,” she said.

However, Dr Shamrahayu said the Federal Constitution is silent on the process and the formalities on how to obtain the removal of disqualification for the membership of Parliament.

“It is clear that only the Yang di-Pertuan Agong can do so, but the King can act based on his wisdom and in the best interest of the nation.

“The Federal Constitution also does not forbid the King to consult any parties, including the attorney-general or the prime minister, in such matters,” she said.

Law teacher and The Star columnist Prof Dr Azmi Sharom said the pardon process itself will not be simple.

“There is the Pardons Board to convince as well, and if Anwar is pardoned, someone will have to step down for him in his bid to be an MP,” he said.

PKR lawyer and Subang MP R. Sivarasa said it was quite straightforward.

“Immediately after the pardon, one of our current MPs resigns and a by-election takes place. The process will take under two months,” he said.

Lawyer New Sin Yew said that while there have been suggestions that the King must act in accordance with the advice given by the Pardons Board on whether to grant pardon, the courts have decided that the Ruler’s decision is “an exercise of his discretion”.

“The King only acts after consultation or on the recommendations of the Pardons Board under Article 40(3) of the Federal Constitution. The Pardons Board does not ‘advise’ the King.

“Therefore, the King is not bound to act in accordance with the advice of the Pardon’s Board,” he said.