PETALING JAYA: The Election Commission (EC) should engage private practitioners instead of government counsel in any impending legal suit, a retired judge and lawyers said.
They said the EC must always be mindful of public perception towards the commission due to its special position in the Federal Constitution.
Former Federal Court judge Gopal Sri Ram said the EC was supposed to be an independent body established under the constitution.
“It is not part of the executive nor the legislature. It is therefore appropriate that it receives independent advice from some quarter other than the Attorney-General’s Chambers (AGC),” he said.
He said the practice of the AGC representing the EC was inconsistent with its independence.
“Because this will be seen as an act on the part of the executive of which the AGC is a member to represent a supposedly independent body”, he told FMT.
Sri Ram said if any action was taken against the election commissioners, it would “take a miracle to rescue them from the sins they have committed” in the redelineation process and in the conduct of the polls, including the way the results were dealt with.
He said this in response to PKR candidate Dr Streram Sinnasamy filing a petition to nullify the EC’s decision to declare former Negeri Sembilan menteri besar Mohamad Hasan as the winner of the Rantau state seat.
Streram’s party, PKR, is one of the partners of the Pakatan Harapan which is now administering the federal government and the Negeri Sembilan government following PH’s win in the just-concluded general election.
Streram, who was denied entry into the nomination centre to file his papers, has also filed a suit for misfeasance in public office against the returning officer, Amino Agos Suyub, and the EC.
More election petitions, especially from PH candidates, are expected to be filed once the EC gazettes the results.
Electoral watchdog Bersih 2.0 had earlier called on the new government to advise the king to remove the commissioners if they did not resign immediately.
Bersih acting chairman Shahrul Aman Mohd Saari said the public had lost confidence in the commissioners over their failure to ensure clean, free, and fair elections, especially in the 14th general election (GE14).
Lawyer Harpal Singh Grewal said it would be most incongruous for the AGC now to defend the EC and Agos in response to Streram’s petition.
“It is difficult for the AGC to represent the EC and the returning officer if what was reported in the media is true,” he said.
Harpal said in other petitions, government lawyers could appear for the EC as the judge could resolve disputes based on affidavits and submissions.
“It is only a matter of law for the election judge to come to a finding,” he said.
Lawyer Tan Foong Luen said Parliament had provided an allocation to the EC and it should not have any problem engaging lawyers to respond to suits and election petitions.
He said it would look odd for government lawyers to defend the EC when the action came from the ruling PH.
“We are now in an unique situation and who is to appear for the EC in court battles has to be addressed,” he said.