Remember the Election Council from GE14? They’re retiring with full benefits (and BERSIH is pissed)

If there’s one face that Malaysia got used to in a very short period of time, it’s this one.

That’s because many of us were up till 2:30 am in the morning waiting for results that were supposed to be out by 9pm. The next morning, the memes appeared.

However the delayed results were only the tip of the iceberg, with accusations of gerry mandering, vote-rigging, less than ideal voting conditions, unfair candidate disqualification and a whole bunch of other stuff. BERSIH actually submitted a list to the government, in the hopes that the EC council would be brought to justice.

In the weeks that followed, you might have read that the new government was singling out a few individuals and agencies, including Tan Sri Hashim and the EC to be investigated for corruption. Tan Sri Hashim stepped down as EC chairman on July 1st 2018.

Fast forward to today, and there was a tribunal held last week for the other 6 members of the EC – Othman Mahmood, Mohd Yusop Mansor, Abdul Aziz Khalidin, Sulaiman Narawi, K Bala Singam, and Leo Chong Cheong. There were 5 retired judges on the tribunal, and the end result was announced on Friday, which we attended.

And they didn’t even get a slap on the wrist

So here’s what happened.

• 14 Aug 2018 – BERSIH wants a tribunal set up to investigate the 6 EC members
• Oct 17 – The government announced the intention to set up a tribunal to investigate the 6 members of the Election Commission.
• Oct 18 – A day later, 5 of them tendered their resignations
• Oct 23 – Law Minister Liew Vui Keong states that because they have resigned, that there is no need for a tribunal anymore.
• Nov 27 – The 6th EC council member, Bala Singam also tenders.
• Jan 1st 2019 – All 6 are officially no longer members of the EC
• Jan 28 – Lawyer for EC guys mentions suing Bersih. One of the judges on the Tribunal, Shim Lip Kiong, says the “tribunal is academic“.

“What is there to be removed since they (the six EC members) have resigned? The proceeding today is a shame to the Attorney-General’s Chambers. It’s a black Monday for the rule of law. How much has been spent to set up this tribunal? What a waste,” – Khairul Azam, lawyer for ex-EC officials

• Jan 30 – Attorney General Tommy Thomas rebuts by saying it is not.
• Feb 1 – BERSIH 2.0 pushes for no pensions for 6 EC members
• May 25 – The Tribunal proceeds, and votes 3-2 in favour of not pursuing further action against the 6 EC members.

UPDATE (30 May): BERSIH clearly unhappy with the result of the tribunal, has called for an RCI (Royal Commission of Inquiry) into the EC.

So how we got to this result from the tribunal gets a little convoluted. The tribunal was formed on the basis of Article 114 of the Federal Constitution.

So basically, that line means that if EC council guys are removed, they’re removed the same way judges are removed from Federal Court – which is pretty serious (usually in cases of impartiality, or conflict of interest). The tribunal was formed to decide if they should be removed in this manner, but because they resigned, there was no removal, and thus… no case. The lawyers argued that whether or not they received benefits was ‘a futile exercise’.

“In the final analysis, the fundamental question is this: is it in the public and national interest to spend so much time, energy and expense merely to seek the removal of the six officers when they have already removed themselves, whether voluntary or otherwise, from the EC? The answer in my view is obvious… it is an exercise in futility,” – Federal Court judge Steve Shim Lip Kiong

On the other side of the divide, our Attorney General could barely hide his disappointment at the verdict, claiming that the public would want more investigations into the events leading up to and on the night of May 9th 2018.

“We will have to study the recommendations made by the panel once they have submitted the report to the Yang Di-Pertuan Agong and I will advise the government to release it, and all of you can read it for yourselves” – Tommy Thomas  after the Tribunal.

So now that they’re not longer working at SPR, does it matter?

“”By disbanding the tribunal, it sends the message that it is okay to violate election laws and the constitution as long as you retire or resign before being brought to trial. It means that Election Commission staff can enjoy immunity for offences committed by them” – Maria Chin

Let’s look at the gravity of the situation. The charges against these 6 Election Council members are serious – if true, allegedly hacking an election to change the results of a democracy. In fact, when the results of the tribunal came out, most of the comments highlighted on MalaysiaKini were negative.

“The country was nearly thrown into chaos by these former EC officers, and yet, the three-panel members say it is academic? Najib has also quit as PM, so by the same logic are his many charges academic? It doesn’t make any sense unless it is feared that there are many skeletons in the closet.”- Fairmind, one of many negative comments about the tribunal ruling.

Strangely, the earlier claim of the government to investigate the EC for corruption never came to fruition. We tried searching for an MACC case against SPR and came up empty

One lawyer we talked to on the condition of anonymity argued that the council members could be charged under Section 124 of the Penal Code, which talks about acts detrimental to parlimentary democracy.

But as some lawyers have told us, it’s usually used for things related to terrorism, or as we searched, to charge students for protesting outside Bangunan Parlimen. Heck, you can understand why Maria Chin is annoyed because even SHE was charged under Section 124C for getting funds for BERSIH.

“To be honest, I think a lot of us were underwhelmed as well, thinking that criminal charges should be brought in on these guys. But to have criminal charges requires a much heavier burden of proof, so maybe with all that’s going on with the government, this was one of the things that slipped between the cracks?” – Anonymous lawyer friend 

“”Certainly there is a sense that among ourselves and the public that justice wasn’t served today and we have to continue to seek justice in different ways,” – Thomas Fann, BERSIH

For now, it appears that the case is over. Strangely, this case has been largely forgotten by the public, judging on the social media traction for this tribunal case.

Hmm… maybe it’s because the public in general didn’t think that there was any election fraud? Oh wait…