Doctrine of parliamentary
supremacy gravely undermined if Parliament is unable as the highest
political court of the land to decide on an impeachment motion as to whether
Election Commission Chairman continues to enjoy the public confidence as
mandated by the Constitution
Media Conference Statement
- after meeting the Attorney-General Tan Sri Gani Patail in AG’s Chambers
by Lim Kit Siang
(Kuala Lumpur, Saturday): DAP Deputy National Chairman and MP for Bukit Glugor, Karpal Singh and I met the Attorney-General Tan Sri Abdul Gani Patail to discuss my impeachment motion of no confidence against the Election Commission Chairman and other Commission members for the conduct of the most chaotic and disgraceful 2004 general election.
We expressed to Gani our concern at reports that he is inclined to the view that such a no confidence motion is sub judice of the 47 legal challenges which have been filed in connection with the 2004 general election – 44 election petitions and three applications for judicial review.
The Cabinet on Wednesday agreed to the debate of the impeachment motion of no confidence against the Election Commission Chairman and other Commission members subject to the advice of the Attorney-General whether it will be sub judice as election petitions had been filed in court against the Election Commission, questioning the election results.
My impeachment motion of no confidence reads:
Both of us pointed out that the doctrine of parliamentary supremacy will be gravely undermined if Parliament is unable as the highest political court of the land to decide on an impeachment motion as to whether Election Commission Chairman continues to enjoy the public confidence as mandated by the Constitution.
We pointed out the what is before the courts of law as a result of the 44 election petitions and three applications for judicial review, the legality of the 2004 general election, is completely different from what is before Parliament – public confidence in the Election Commission as a result of the conduct of the 2004 general election.
Hypothetically, even if Parliament passes the impeachment motion of no confidence in the Election Commission, it does not automatically make the 2004 general election unlawful. Similarly, even if the courts should clear the Election Commission of any illegality in the conduct of the 2004 general election, it does not mean that Parliament cannot pass a motion of no confidence against the Election Commission Chairman.
The two issues must therefore be kept distinct and separate, as what Parliament is being asked to do – no confidence motion – is not a justiciable issue before the courts.
No court of law has the right to stop Parliament from debating and deciding on a no-confidence motion against the Election Commission Chairman, or it will lead to the ludicrous position that a court of law can stop Parliament from debating and deciding on a no confidence motion against the Prime Minister, on some tangential issues related to the motion which had been filed in the courts.
While it is accepted that it is sub judice to refer to matters which have been set down for trial or court adjudication, a clear distinction here must be made between the issue of the legality of the questions raised in legal challenges as distinct from parliamentary and political confidence in the Election Commission for its conduct of the 2004 general election. My impeachment motion, for instance, makes no reference to the legality or illegality of any particular issue pleaded in electoral challenges in the court of law.
In any event, the question here is not whether the scandalous and outrageous performance of the Election Commission would be raised and debated in Parliament – as MPs have already started doing so in the very first day of Parliament, both during question time and the debate on the Royal Address – but whether Parliament and government is going to take this issue seriously by having a focused debate in an impeachment motion specifically addressing the issue or whether it would merely be the subject of random references and potshots by MPs during the course of the current parliamentary meeting.
In allowing a question on the misconduct of the 2004 general election by the Election Commission to be answered in the very first day of Parliament followed by supplementary questions, the impeachment motion of no confidence in the Election Commission to appear on the Order Paper as well as MPs to lambast the Election Commission for the most chaotic and disgraceful conduct of the 2004 general election, both the Speaker and Parliament have acted on the clear basis that no question of sub judice arises.
It would be most extraordinary, not calculated to enhance public confidence in parliamentary democracy and the rule of law, if it is suddenly found that Parliament had been acting sub judice in the first week, in allowing questions and debate on the Election Commission’s conduct of the recent general election, in order to shut up all criticisms of the Election Commission to justify the stand that the impeachment motion of no confidence against the Election Commission Chairman and other members of the Commission cannot be debated on grounds of sub judice of election challenges in court.
* Lim Kit Siang, Parliamentary Opposition Leader,
Member of Parliament for Ipoh Timor & DAP National Chairman