KUALA LUMPUR: The tribunal looking into the allegations of misconduct committed by six former Election Commission (EC) members in the 14th General Election are undecided if they should make their decision public or report it directly to the Yang di-Pertuan Agong.
"The question now is the decision, how should we deliver this? Should it be done through the Yang di-Pertuan Agong or by making an announcement publicly?" retired Federal Court judge Tan Sri Steve Shim asked during the tribunal on Monday (April 1).
Shim is chairing the tribunal together with four other retired Federal Court judges.
The other four are Tan Sri Zaleha Zahari, Tan Sri Suriyadi Halim Omar, Tan Sri Jeffrey Tan Kok Wha and Datuk Dr Prasad Sandosham Abraham.
Attorney General Tommy Thomas said the tribunal had a free hand to make the decision.
"I don't think there is a need to go back to His Majesty for an interim matter," he said.
Thomas said it was also possible for the tribunal to make the announcement and then make recommendations to the Yang di-Pertuan Agong.
"It is an announcement of a decision of a preliminary issue, I don't see why – under the Constitution – the tribunal cannot do so," he said.
Counsel Datuk Shaharudin Ali, who is representing four of the former EC members, concurred that the decision should be made public as the report could then be given to the Yang di-Pertuan Agong.
However, counsel K. Balaguru said that if the tribunal's decision was merely academic, then their recommendations could be made directly to the Yang di-Pertuan Agong.
Previously, the tribunal was told that its findings would only be academic as the persons in question had resigned.
During the tribunal, questions also arose if a person could be removed from office when they no longer held any position.
Shaharudin said the EC members had resigned "not in anticipation of the tribunal" as there were already discussions about shortening their services.
"The nature of this tribunal proceedings is penal in nature – if there is a dispute as to the meaning of 'removal' or 'remove' in Article 125 or 114, then that doubt must be resolved in favour of my clients who are facing potential penal consequences as a result of this domestic inquiry.
"In a domestic inquiry, the Constitution only speaks about removing the EC members if they have committed misconduct. It does not include the power to investigate once they are no longer in office," he said.
On Oct 17 last year, it was reported that the government would set up a tribunal to investigate the six for alleged electoral malpractice.
A day later, five of the EC members announced their resignations. The remaining member, Bala Singam, resigned on Nov 27.
However, the tribunal heard that their resignations only took effect on Jan 1 this year and it was the Yang di-Pertuan Agong who had consented to shortening of their service.
K. Balaguru questioned if the EC members had resigned or had obtained the consent of the Yang di-Pertuan Agong to shorten their service.
Hence, he said if it was the Yang di-Pertuan Agong who had consented to their shortening of service then it was not for the tribunal to question the His Majesty's decision.
The six former EC members concerned are Tan Sri Othman Mahmood, Datuk Md Yusop Mansor, Datuk Abdul Aziz Khalidin, Datuk Sulaiman Narawi, Datuk K. Bala Singam Karupiah and Datuk Leo Chong Cheong.