.JPG "Attorney General Tommy Thomas (left) speaks during a tribunal hearing on the misconduct of former Election Commissioners at the Asian International Arbitration Centre in Kuala Lumpur February 28, 2019. u00e2u20acu201d Picture by Ahmad Zamzahurinn")
KUALA LUMPUR, Feb 28 — Unlike a court of law, a tribunal has a certain flexibility that gives it a certain freedom in conflict resolution though its findings may be deemed academic, Attorney General Tommy Thomas said today.
He was weighing in on the set of a special tribunal seeking the removal of six former Election Commission (EC) members instead of accepting their resignations.
“I must emphasise we are not the court of law. We are a tribunal where all cases must be taken against the background.
“When the five members deliberate, they must remember they are not judges or former judges, but a tribunal. You have to be far more open and not account to technical rules,” he said before the panel at the Asian International Arbitration Centre here.
Thomas had today said the Federal Constitution does not state how a tribunal functions, as opposed to the setting up of a Royal Commission.
During its maiden hearing on January 28, the findings of the tribunal were said to be academic, as the six former EC members resigned before the five-member panel was set up.
Earlier, Counsel Datuk Shaharudin Ali, four of the former EC members — Tan Sri Othman Mahmood, Datuk Md Yusop Mansor, Datuk Abdul Aziz Khalidin, and Datuk Sulaiman Narawi — had said that the proceeding was academic as the six were no longer in office.
He said M. Puravalen from the Malaysian Bar, who was appointed to assist the five-man tribunal but was terminated by Thomas for obedience, was correct to have said that the proceeding cannot continue due to the said reason.
Thomas, however, had earlier submitted that he would make a fresh submission as Puravalen had failed to follow his instructions.
Meanwhile, counsel A Srimurugan had presented an argument that his client Datuk K. Bala Singam, and another former EC member Datuk Leo Chong Cheong, had not resigned from their position in the commision, but had instead shortened the term and left office effective January 1 this year.
Srimurugan argued that this goes against Thomas’ statement that the former EC members had tried to frustrate investigations of the tribunal and to avoid the ignominy of being removed by resigning.
“On behalf of the respondents, our client has never resigned. They had requested His Majesty’s decision to shorten their service and it was granted.
“They finished office, they did not resign. There is a difference between shortening service and resigning,” he told the tribunal.
Srimurugan said since the six former EC members had shortened their tenure, the tribunal cannot be set up as they were no longer in office before the tribunal’s establishment.
He said Prime Minister Tun Dr Mahathir Mohamad had made a representation to the Yang-Dipertua Agong to have the former members suspended pending the setting up of the tribunal, but His Majesty had allowed them to leave office before their retirement and were not suspended.
“Had they been suspended we won’t have this problem because pending suspension order, we can have the tribunal,” he said.
Five former judges to the tribunal, namely Tan Sri Steve Shim Lip Kiong — who will be chairing the tribunal — Tan Sri Zaleha Zahari, Tan Sri Suriyadi Halim Omar, Tan Sri Jeffrey Tan Kok Wha and Datuk Prasad Sandosham Abraham, were appointed by the Yang di-Pertuan Agong to form the tribunal that would examine the alleged misconduct of the former EC members.
The appointments were made pursuant to Articles 114(3), 125(3) and 125(4) of the Federal Constitution.
The tribunal had first convened in the Klang Court on January 28, at 10am.
Previously, Thomas had noted that “serious allegations of misconduct” had been levelled against the EC for its role in the preparation and conduct of the 14th general elections, before and on polling day itself on May 9, 2018.
As a result of the allegations, Thomas said the prime minister had made representations to the Yang di-Pertuan Agong that the six remaining EC members should be investigated and be subject to a possible removal from office by a tribunal of judges if serious misconduct is found, in line with Articles 114(3) and 125(3).
