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. Should the Tribunal holds that the EC6 had misconducted themselves, it may only make one recommendation and that is to remove them. The removal would affect their pensions and other benefits.

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


Published by the Malay Mail  on 31st March 2019