ATTORNEY-GENERAL Tommy Thomas said a tribunal to investigate misconduct allegedly commited by former Election Commission members must proceed, as its findings could pave the way for reform laws and set a precedent for future commissioners.

Thomas urged a five-member tribunal consisting of former Federal Court judges to ignore a claim by former conducting officer M. Puravalen that the tribunal findings may be rendered academic as the six EC members in question have resigned.

Thomas said the tribunal’s findings could also recommend that gratuity payments be halted to the former EC members if misconduct was proven.

He reiterated the submission by federal counsel of the A-G Chambers, M. Kogilambigai, on the tribunal’s first hearing on January 28 that proceedings should continue because what is being investigated is the integrity of the EC and that it was necessary to restore public confidence in the electoral system due to its impact on future elections.

Puravalen was removed as conducting officer days after the first hearing.

Steve Shim chairs the tribunal that includes Zaleha Zahari, Suriyadi Halim Omar, Jeffrey Tan Kok Wha and Prasad Sandosham Abraham.

The six former EC members – Othman Mahmood, Md Yusop Mansor, Abdul Aziz Khalidin, Sulaiman Narawi, Bala Singam Karupiah and Leo Chong Cheong – were present at the Asian International Arbitration Centre headquarters in Kuala Lumpur today where the tribunal’s second hearing was held.

They did not speak to the media.

The men face 13 charges of misconduct, including condoning malapportionment, gerrymandering as well as misleading the public on the re-drawing of electoral boundaries. 

Bala Singam was represented by lawyers K. Kumaraendran and A. Srimurugan while Leo was represented by R. Kengadharan. Othman, Aziz, Yusop and Sulaiman were represented by Shaharudin Ali.

In his oral submission today, Thomas said the acts or omissions of EC members, should it amount to misconduct, cannot be immune from the scrutiny and investigation of the tribunal “simply because they have resigned”.

“We submit that the tribunal may not be restricted to the punishment of removal from office as they may alternatively also recommend ‘appropriate action’ as per the second part of their mandate,” he said. 

The tribunal members were appointed by the Yang di-Pertuan Agong in pursuant Articles 114(3), 125(3) and 125(4) of the federal constitution to look into alleged misconduct by the six former EC members in the preparation and conduct of the 14th general election last year.

If the six men were found guilty of misconduct, the tribunal’s terms of reference also include making recommendations to the king on the appropriate action to be taken against them, including their removal from office. 

Thomas further said the resignation of the six EC members, were “clearly a deliberate move to frustrate efforts of the tribunal and to avoid the ignominy of being removed, with all its attendant consequences.”

He noted that on October 18, last year, a day after it was reported that the government had begun the process of establishing a tribunal for the purpose of removing the six remaining EC members, five of them tendered their resignations to the king. 

The last remaining EC member tendered his resignation on November 27. Thomas informed the tribunal that the king accepted the resignations on October 26 and November 29 respectively, and were post-dated unilaterally by the EC members to take effect on January 1, this year. 

Thomas submitted that these resignations did not affect the setting up of the tribunal as their pre-resignations conduct were still the subject matter of tribunal proceedings. 

Thomas also noted that the difference between a removal from office and a resignation could result in financial implications to the EC members, namely their entitlement to pension and other benefits, which will accrue to them on resignation, but may not be payable if they are removed. 

On the EC member’s security of tenure, Thomas said it was to preserve the need for the commission’s independence and impartiality.

“This does not however, insulate the EC members from accountability for acts that are contrary to their duties and functions as commissioners,” he said. 

“This is a historic opportunity for the tribunal to bring to life our founding father’s expectations, as enshrined in our federal constitution, and in order to ensure scrutiny of the acts of the EC members who have been appointed to positions of trust.”

“A precedent must be set to serve as an example to future members of the EC.”

On a final note, Thomas said that the tribunal was established on December 5, after all six resignations had been assented to by the king.

“This is the clearest indication that as far as His Majesty is concerned, although resignations have been accepted, His Majesty is satisfied that there is a constitutional obligation to set up this tribunal to investigate their misconduct in office. 

“In consequence, the tribunal should proceed with its investigations.” 

Later, Srimurugan submitted to the tribunal that all six EC members had not, in fact, resigned from their posts but had instead requested that their tenures be shortened, which was later assented to by the king. 

Srimurugan said that Prime Minister Dr Mahathir Mohamad obtained assent by the king to set up the tribunal on December 5, when they were still EC members. 

“The attorney-general did not issue any suspension letters against the six after the approval to set up a tribunal was given,” he said.

Srimurugan said that because the shortening of term was not provided for in the federal constitution, Thomas should have advised the king to revoke the request sought by the six men.

“Instead, the attorney-general only issued a statement that the six resigned to escape punishment, which is not true,” he said.
 
EC members, like Federal Court judges, can only be removed through a tribunal. Had their tenure not been cut short, the six commissioners could have served until the mandatory retirement age of 66. 

Shahrudin told the tribunal that Puravalen’s submission on January 28 that the tribunal’s finding was academic was legally binding. 

“The attorney-general cannot now make a U-turn,” he said.

Thomas had earlier said it was within his rights to sack Puravalen: “I remove him because he acted contrary to my instructions.”

Kumaraendran later argued that this was unfair of Thomas as Puravalen was not present to defend himself. 

The tribunal will rule on whether the matter is academic at a later date. – February 28, 2019.