I have been asked by the Penang state government to advise whether they can appoint a Commission of Inquiry to investigate money politics and other irregularities which affected the recently conducted 13th general election, and to submit a report thereafter.

2. The relevant Act is Commissions of Inquiry Act, 1950. Section 2 of the Act gives power to both the federal and state governments to appoint commissions.

Section 2(3) reads:

(3) The state authority of any state other than Sabah or Sarawak may, where it appears to him to be expedient so to do, issue a commission appointing one or more commissioners and authorising the commissioners to enquire into -

(d) any other matter in which an inquiry would, in the opinion of the state authority, be for the public welfare of the state and which does not directly concern the public welfare of any state:

3. The expression "public welfare" found in Section 2(3)(d) is also found in Section 2(1)(d) relating to the Agong's power to appoint at the federal level. The expression is not defined in the Act, but obviously must be interpreted as widely, generally and broadly as possible.

It is just not possible for Parliament to foresee all the matters of public welfare that may occur over the years. Hence, a purposive approach to interpretation must be taken.

Accordingly if the State Authority of Penang is satisfied that the public welfare of Penang has been engaged by reason of the dishonest manner in which the election campaign had been carried out the state authority is empowered, under Section 2(3), to appoint a Commission of Inquiry.

4. Although references in Section 2(3) to the "opinion of the state authority" and "where it appears to him to be expedient to do so" are to the state authority, that is, the head of state, in law the discretion belongs to the head of government, that is, the chief minister of Penang.

Further, once such an appointment is made by the Yang diPertuan Negeri on the advice of the chief minister (which must be accepted by the former) that appointment cannot be challenged in court because it is non-justiciable, and also because no person or party has the necessary "locus standi" to institute legal proceedings in court.

5. Section 3(1) provides that the state authority may specify the terms of reference of the commission, and also give practical directions on how the commission should carry out its duties.

Section 3(2) gives the state authority the power to appoint a number of commissioners; prudence suggests an odd number be appointed to accommodate dissent.

6. We have briefly researched on how Section 2 of the Act is interpreted by our courts, but unfortunately there appears to be no reported Malaysian authorities.

The English equivalent, namely, the Tribunals and Inquiries Act, 1992, is worded quite differently, and does not provide useful guidance.

7. I would therefore advise the Penang government to proceed to appoint a Commission of Inquiry, with the widest terms of reference, if it is so minded to do.

Penang to set up election fraud inquiry panel

TOMMY THOMAS is a lawyer specialising in the constitution.