The Tribunal hearing to investigate the six former members of the Election Commission has been put to an expected and unsurprising halt. The Tribunal has first to decide on the issue of whether the hearing can proceed given that the six members had resigned before the Tribunal was set up.

Some explanation on the nature of the Tribunal’s proceedings is necessary before I dive into the preliminary issue on the continuation of the hearing.

The establishment of the Tribunal

The tribunal was set up according 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). Additionally, 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 us analyse the preliminary issue.

Whether the Tribunal’s proceedings is now rendered academic

In legal parlance, a case is rendered academic when its result does not have real implications. Generally, when a case is academic, a court or tribunal would not continue to hear or decide on the matter as it would be unnecessary to do so.

In this regard, counsel for the former members argued that the Tribunal’s proceedings had been rendered academic because the members had resigned from office. The Tribunal cannot recommend that someone who is no longer in office is removed from it. Similarly, the Yang di-Pertuan Agong (YDPA) need not 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 that provision. From a plain reading of Article 125(3), the sole purpose of a tribunal is to investigate any misbehaviour in order and to recommend to the YDPA if a member should be removed from office or otherwise. The Tribunal is not able to recommend removal when the member has resigned. Thus, it should not proceed with the hearing. It cannot now embark on a fact-finding mission for an academic purpose. Otherwise, the Tribunal would be acting beyond its legal authority. Unlike a Article 125(3) tribunal, however, a Commission of Enquiry (COE) set up under the Commission of Enquiry Act 1950 would have the freedom to inquire into the conduct of the former members subject to its terms of reference.

I hope I am not doing the Attorney General’s submission any injustice by summarising his arguments. In essence, he argued that there is a substantial public interest element in the Tribunal’s proceeding even if it is no longer able to recommend the removals. The Election Commission plays a vital role in our system of democracy. Any findings by the Tribunal would serve as a guideline for the conduct of future members of the Commission. He also argued that apart from making removal recommendations, the Tribunal has the power to recommend the denial of gratuity payments (the members’ “pension” in effect). In this sense, there are live matters with financial implications to be dealt with. The proceedings are, therefore, not academic and should proceed.   

What would be the outcome?

At the heart of the matter is the interpretation of Article 125(3). The provision is somewhat ambiguous.

The Attorney General’s submission, while persuasive, is stretching the meaning of Article 125(3) too far. This interpretation is dangerous because constitutional provisions dealing with removal powers should be restrictively read lest it is said that the Executive is interfering with the Judiciary.

Article 125(3) should be interpreted only to ascertain if a judge, or in this case, a member of the Election Commission, should be removed from office. It should not be an instrument to find facts and provide guidelines for future conduct. The latter function is more appropriately suited for a COE which could be established by the YDPA. The Royal Commission of Enquiry into the VK Lingam Video Clip was one example.

Having said that, the proceedings before the Tribunal may not necessarily be academic.

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

Surely it is within the spirit and purpose of Article 125(3) that former members could still be “removed” from office retrospectively if they have misconducted themselves during their tenure. As such, they could then be denied any benefits arising from their office from the date of their removal from office as ordered retrospectively. If this is the case, the Tribunal should proceed to hear the matter.