Tribunal findings may be academic since former EC members had resigned

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KLANG (Jan 28): The findings of the tribunal to investigate allegations of misconduct by six former members of the Election Commission (EC) in the preparation and conduct of the 14th General Election (GE14) last year, may be rendered academic since all of them had resigned.

Counsel M. Puravalen of the Malaysian Bar Council, who is assisting the five-member tribunal, said the purpose of setting up of the tribunal was overtaken by their resignation.

“In light of the development, as officers of the court, we are duty-bound to inform that, that is the legal position of the Malaysian law and common law,” he said at the start of the tribunal which convened today.

The other two assisting the tribunal are Lim Wei Jiet, also from the Malaysian Bar, and Kogilambigai Muthusamy from the Attorney-General’s Chambers (AGC).

The members of the tribunal are retired judges of the Federal Court, namely Tan Sri Amar Steve Shim Lip Kiong, who is chairing the tribunal, Tan Sri Zaleha Zahari, Tan Sri Suriyadi Halim Omar, Tan Sri Jeffrey Tan Kok Wha and Datuk Dr Prasad Sandosham Abraham.

They were appointed by the Yang di-Pertuan Agong in accordance with Articles 114(3), 125(3) and 125(4) of the Federal Constitution.

The six former EC members are Tan Sri Othman Mahmood, Datuk Md Yusop Mansor, Datuk Abdul Aziz Khalidin, Datuk Sulaiman Narawi, Datuk K. Bala Singam and Datuk Leo Chong Cheong.

Shim said the tribunal members were appointed by the Yang di-Pertuan Agong to seek whether there was misconduct by the six former members of the EC and whether they should be removed as EC members if the misconduct were proven.

“…but the fact that they had already tendered their resignation, the question arises whether it serves any useful purpose to hear the charges against them. The tribunal is not tasked with informing on electoral laws and regulations,” he said.

Counsel Datuk Shaharudin Ali who agreed with Puravalen’s submission said the tribunal panel had no jurisdiction to enquire into the conduct of the six former members of the EC as they were no longer in office.

Rebutting the claim, Zaleha said the tribunal members were appointed by the Yang di-Pertuan Agong and they were duty-bound to decide on the issue based on the facts presented to them.

“You can’t say we have no business to be here,” she said.

The tribunal then reserved its decision at a later date after hearing the submissions.

Shaharudin, Mohd Khairul Azam and Datuk Syed Azimal Amir Syed Abu Bakar appeared for Othman, Md Yusop, Abdul Aziz and Sulaiman, counsel Datuk K. Kumaraendran, K. Balaguru and S. Velan for Bala Singam and lawyer R. Kengadharan for Chong.

Attorney-General Tommy Thomas in a statement earlier said that serious allegations of misconduct had been levelled against the EC for its role in the preparation and conduct of GE14, prior to and on polling day, May 9, 2018.

He said in consequence, the Prime Minister represented to the Yang di-Pertuan Agong that the six remaining members of the EC ought to be investigated and, if serious misconduct were found, be subject to possible removal from office pursuant to Articles 114(3) and 125(3) of the Federal Constitution, that is, by a tribunal of judges.

On Oct 17, 2018, the government had reportedly begun the process of setting up the tribunal. A day later, five members of the EC announced their resignation from office. The one remaining member tendered his resignation on Nov 27, 2018.

Thomas said all these resignations were to have taken effect on Jan 1, 2019.