The hearing of the tribunal to investigate the six former members of the Election Commission (“the Tribunal”) has been put to an expected and unsurprising halt.

The reason for this halt is the Tribunal has to first decide on a preliminary issue of whether to proceed with the hearing given that the six former members had resigned before the tribunal was set up.

Some explanation on the nature of the Tribunal is required before we dive into the issue of whether the Tribunal should proceed with the hearing.

The setting up of the Tribunal

The tribunal was setup pursuant to Article 114(3) and Article 125(3) of the Federal Constitution.

Article 114(3) states that a member of the Election Commission can only be removed from office in the same manner as a judge of the Federal Court. This brings us to Article 125(3) which prescribes how a judge of the Federal Court may be removed from office.

We have to replace the words “judge of the Federal Court” and “judge” with the words “member of the Election Commission” in Article 125(3).

On top of that, for reasons not relevant to this explanation, the words “any breach of any provision of the code of ethics prescribed under Clause (3B)” will have to be replaced with “misbehaviour”.

Article 125(3) would now read:

“(3) If the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a member of the Election Commission ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the member of the Election Commission from office”

Now that we are clear on the battle lines, let’s analyse the issues.

Whether the Tribunal is now rendered academic

In legal parlance, “rendered academic” means there is no real implication as to the end result.

Generally, where a matter has been rendered academic, a court or tribunal would not continue hearing or decide on the matter because it would be unnecessary to do so.

In this regard, counsel for the six former members argue that the setting up of the Tribunal has been rendered academic since the six former members had resigned from office. Since they are no longer in office, the Tribunal cannot recommend that they be removed and the YDPA no longer need to remove them from office.

There is much force in this argument. The Tribunal was set up under Article 125(3) and it cannot operate beyond the ambit of Article 125(3).

From a plain reading of Article 125(3), the sole purpose of the tribunal is to investigate into any misbehaviour in order to recommend to the YDPA whether to remove the member from office.

If the Tribunal is not able to make such recommendation given that the members had resigned, as in this case, then the Tribunal could not proceed. It cannot now embark on a fact-finding mission for academic purposes. Otherwise, the Tribunal would be acting beyond its legal authority. Unlike a tribunal set up under Article 125(3), a Commission of Enquiry set up under the Commission of Enquiry Act 1950 would have the freedom to enquire in to the conduct of the former members.

I hope I am not doing the Attorney General’s submissions any injustice by summarising his arguments. In essence, he argued that there is a strong public interest element in the Tribunal proceeding even if they could no longer recommend the removal of the former members from office because the Election Commission plays a very important role in our system of democracy. Any findings made by the Tribunal will serve as a guideline for future members of the Commission. He also argued that apart from recommending the removal, the Tribunal could make other recommendations such as the denial of gratuity payments (their “pension” though not called that) to the former members. In this sense, there are live matters with financial implications for the Tribunal to decide on so it any proceedings would not be “academic”.   

What would be the outcome?

At the heart of the matter is the interpretation of Article 125(3), which has been worded rather ambiguously.

The Attorney General’s submissions, whilst persuasive, could be stretching the meaning of Article 125(3) too far. This is dangerous because Constitutional provisions that deals with the removal of office for judges should be read restrictively lest it be seen as executive interference into the judiciary.

Article 125(3) should be seen as a provision invoked only for the purposes of ascertaining whether a judge, or in this case, a member of the Election Commission, should be removed from office. It should not be seen as an instrument to fact-find and provide guidelines for future cases. That is a function more properly suited for a Commission of Enquiry which could be established by the YDPA under the Commission of Enquiry Act 1950. The Royal Commission of Enquiry into the VK Lingam Video Clip is one such example.

That being said, the proceedings before the Tribunal may not necessarily be academic.

Article 125(3) is silent on whether the YDPA could remove the former members from office retrospectively. Where a provision of the Constitution is silent, one must look at the purpose behind such provision. In this regard, the purpose of Article 125(3) is to deal with judges, or in this case, members of the Election Commission who misbehaved.

Surely it is within the spirit and purpose of Article 125(3) that former members could still be removed from office retrospectively if found to have misbehaved during their tenure thereby depriving them of any benefit that comes along with the office from the date of removal from office.

Should this be the case, which it should, the proceedings before the Tribunal would not be rendered academic since it could now recommend that former members be removed from office.

Published on 4th March 2019