The Tribunal to investigate allegations of misconduct against six former members of the Election Commission (EC) is to decide whether it could proceed with the hearing given that the members (EC6) had earlier resigned.

The establishment of the Tribunal

The Tribunal was set up pursuant to Articles 114(3) and 125(3) of the Federal Constitution.

Article 114(3) states that a member of the EC may only be removed from office in the same manner as a judge of the Federal Court.

Article 125(3) prescribes how a judge of the Federal Court may be removed from office.

If the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the Yang di-Pertuan Agong (YDPA) that a member of the EC ought to be removed on the ground of misconduct 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 YDPA shall appoint a tribunal and refer the representation to it; and may on the recommendation of the tribunal remove the member from office.

Are the Tribunal proceedings now academic?

Something is rendered “academic” when it is not of any practical relevance and has no real implications. It is only of theoretical interest.

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

Counsel for the EC6 have argued that the Tribunal is only able to make one recommendation: To remove or not to remove. Since the EC6 are no longer in office, there is no point in continuing with the hearing as the members had resigned and left office.

There is much force in this argument.

The Tribunal’s powers cannot operate beyond the ambit of Article 125(3). The EC6 are no longer in office. If the allegations are proved, the Tribunal cannot remove one who is no longer there in office. As such, the Tribunal hearing has been rendered academic.

The Attorney General in his media release takes the position that the Tribunal has to investigate the allegations of misconduct and the Tribunal is not restricted to only recommending the punishment of removal from office. The outcome of the Tribunal’s proceedings could affect the EC6’s pensions and other benefits.

Therefore, the Tribunal should proceed with the hearing as there are “live” issues to be dealt with.

Who is right?

At the heart of the matter is how one is to interpret Article 125(3).

The clause deals with the power of removal from judicial office. It should be read restrictively to limit the ability of the Executive to interfere with the work of the Judiciary.

Article 125(3) should therefore be seen as a provision invoked solely for the purpose of ascertaining whether a judge, or in this case, a member of the EC, should be removed from office. There can only be one outcome: To remove or not to remove.

But what is not clear is whether Article 125(3) allows the Tribunal to recommend the removal of the EC6 retrospectively. If it does, then the EC6’s resignations are irrelevant. 

In the United States of America, civil officers have been subjected to impeachment proceedings notwithstanding their prior resignations. There is a precedent for “retrospective” removals.

In 1876, Secretary of War William W. Belknap was accused of bribery and impeachment proceedings were imminent against him. He then resigned before the Senate could approve his impeachment.

In the House Speaker’s words, Belknap resigned “with intent to evade the proceedings of impeachment against him.” Belknap argued that “the only purpose of impeachment is to remove a man from office, when the man is out of office the object of impeachment ceases, and the proceeding must abate. There would be no further object to attain by the proceeding.”

In response, the House of Representatives contended that:

…the power of the Senate of the United States over all grades of public official national wrongdoers, a power conferred for the highest reasons of state and on fullest deliberation, to interpose by its judgment a perpetual barrier against the return to power of great political offenders, does not depend upon the consent of the culprit, does not depend upon the accidental circumstance that the evidence of the crime is not discovered until after the official term has expired or toward the close of that term, but is a perpetual power, hanging over the guilty officer during his whole subsequent life, restricted in its exercise only by the discretion of the Senate itself and the necessity of the concurrence of both branches, the requirement of a two-thirds’ vote for conviction, and the constitutional limitation of the punishment.

…

In this case we claim that the House of Representatives having obtained jurisdiction of the subject-matter by instituting these proceedings against the defendant, he could no more defeat them by resigning midway than he could defeat the Constitution itself.

In conclusion, the Senate resolved that it had jurisdiction over the impeachment of Belknap notwithstanding his resignation.

Parallels may be drawn. The Tribunal should proceed with the proceedings against the EC6.

If they had misconducted themselves, the Tribunal can only make one recommendation and that is to remove them. The removal would affect their pension and other benefits. The issues are therefore still alive.

Assuming the Tribunal’s power may operate in the present for the past, the more difficult question would then be the date that the EC6’s removal is to take effect. What would the date be?

This article was published by Malay Mail.