Article 113(1) provides that:
"There shall be an Election Commission, to be constituted in accordance with Article 114, which, subject to the provisions of federal law, shall conduct elections to the House of Representatives and the Legislative Assemblies of the States and prepare and revise electoral rolls for such elections."
Further to this, Article 113(2)(i) provides that
“..the Election Commission shall, from time to time, as they deem necessary, review the division of the Federation and the States into constituencies and recommend such changes therein as they may think necessary in order to comply with the provisions contained in the Thirteenth Schedule; and the reviews of constituencies for the purpose of elections to the Legislative Assemblies shall be undertaken at the same time as the reviews of constituencies for the purpose of elections to the House of Representatives.”
From these provisions it is manifest that the Election Commission is charged with the heavy responsibility of ensuring free and fair elections through the preparation of the Electoral Rolls and the delineation of constituencies.
That a key aspect of the Election Commission is its neutrality is, as such, self-evident. It is not answerable to the Executive nor to the Legislature. Its powers are not conferred by the Executive nor the Legislature. Its powers are conferred by the Constitution itself, there being no higher legal authority.
It is also self-evident that the effectiveness of the Election Commission is measured by the confidence of the Rakyat in the Election Commission. For the democratic process to succeed, it is vital that Malaysians believe that General Elections are free and fair. Public confidence is crucial. For this reason, the task of appointing the members of the Election Commission falls to the DYMM Yang Dipertuan Agong and the Conference of Rulers and NOT the Executive. Article 114(1) provides:
"The Election Commission shall be appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers, and shall consist of a chairman, a deputy chairman and five other members."
It is significant that the Constitution does not require the Agong to act on, with or after considering the advice of the Executive. The only condition imposed by the Constitution is in Article 114(2) which provides that:
"In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence."
In further safeguarding the neutrality of the Election Commission, a Commissioner cannot be an undischarged bankrupt, cannot engage in any paid office or employment outside his/her duties of as a Commissioner, cannot be a member of either House of Parliament or of the Legislative Assembly of a State (A114(3)).
Further, under Article 114(4A), the Chairman of the Commission shall be disqualified from holding such office if after three months of his/her appointment to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer of employee, or engages in the affairs or business, of any organization or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it.
These provisions are clearly aimed at ensuring impartiality towards the discharge of function by the Election Commission. These safeguards are complemented by a protection of the remuneration of Commissioners through a provision for the same by Federal Law and the charging of such payment upon the Consolidated Fund (A114(5)). Such remuneration cannot be altered to disadvantage after appointment (A114(6)).
The foregoing clearly puts paid to any suggestion that the law pertaining to the Election Commission was/is designed in a manner that made it subordinate to the Executive or the Legislature.
The only involvement of the Legislature is where terms of office other than remuneration, are concerned. These can be provided for by Federal Law (A114(5A)). Additionally, the rules that the Election Commission puts in place to discharge its function are subject to Federal Law (A113(5)). This involvement is limited and does not, and in any event cannot, justify the undermining of the independence and function of the Election Commission.
The Election Commission is intended to be as independent as the Judiciary and the other Constitutional bodies including the office of the Auditor General and the Attorney General. The constitutional scheme of safeguards is similar.
Any act on the part of the Executive to interfere with the independence of the Election Commission is an unconstitutional, and I would say an illegal, act.