KUALA LUMPUR, Dec 7 ― The PKR-helmed Selangor government today lost its bid to have the courts declare the Election Commission’s (EC) redelineation exercise as unconstitutional and invalid.
High Court judge Azizul Azmi Adnan dismissed the Selangor government’s four grounds for its lawsuit to invalidate the EC’s proposed redrawing of electoral boundaries.
“For these reasons explained, I’m dismissing the entire whole application of the applicant with no order as to costs,” he said when delivering his decision today in a packed courtroom.
On October 18, the Selangor government filed its judicial review application against the EC, the EC chairman Datuk Seri Mohd Hashim Abdullah and EC secretary Datuk Abdul Ghani Salleh to challenge the allegedly unconstitutional redelineation exercise in Peninsular Malaysia.
Today, the Kuala Lumpur High Court said the Selangor government’s lawsuit falls within the scope covered by a judicial review, but noted that two previous Court of Appeal decisions had said that the actions challenged in a judicial review must have legal binding effect and adversely affects the constitutional rights of those who sue.
“I am of course bound by these decisions of the Court of Appeal and I therefore find the state of Selangor is not entitled to challenge the reasonability of the redelineation,” Azizul Azmi said, referring to the case involving Melaka voters led by Chan Tsu Chong and a case involving DAP lawmakers M. Kulasegaran and Thomas Su.
The judge also said the Federal Constitution does not say that the EC’s discretionary powers is immune to supervision, adding that the law does not indicate the EC to have “unfettered discretion”.
As for the second ground where the Selangor government had said the redelineation exercise kicking off on September 15, 2016 is invalidated through the EC’s failure to use the latest electoral roll, the judge dismissed it as he said he considered the redelineation exercise to have started on July 14, 2016.
He had noted that the EC had in the July 14 meeting chaired by the EC secretary decided to use the principal electoral roll for the redelineation exercise, while the supplementary electoral rolls containing the quarterly updates of newly-registered voters were published on July 19 and July 20, 2016.
As for the third ground based on the EC’s use of a defective electoral roll with missing addresses for 136,272 Selangor voters, Azizul Azmi said it was not disputed that the electoral roll did not record the addresses of all the voters.
The judge said however it was “likely on balance of probabilities” that these 136,272 voters’ residential addresses were available to the EC when they were registered as voters.
Regarding the EC’s claim that the addresses were “destroyed” during a data migration exercise and a former EC chairman’s contention that it was not destroyed during his time as claimed, Azizul Azmi said whether or not the addresses were actually destroyed did not affect the case.
Noting that the electoral roll has the locality codes of all voters, he said the accuracy of the electoral roll would not be affected even if a locality code is reassigned to another polling district or when a polling district containing the locality code is reassigned to another parliamentary or state seat.
“In a redelineation exercise, the locality code of voters does not change,” he said, later reiterating that a voter would always remain in the same locality code as they were registered in unless they change their address.
He noted that the smallest unit used by the EC to assign voters is the locality code and that having locality codes would be sufficient for the EC to discharge its constitutional functions, also highlighting the legal position in Malaysia that the accuracy of the electoral roll cannot be challenged.
Azizul Azmi dismissed the fourth ground that the EC’s allegedly inadequate information violates natural justice and voters’ legitimate expectation, ruling that the information provided was sufficient for those who wanted to objected the redelineation exercise.
Noting the Selangor government’s comparison of the EC with their UK and Australian counterparts that had provided more information, the judge said he did not necessarily disagreed with those observations.
But said the case did not revolve around whether the EC had “adhered to international best practices for transparency” and was instead on the lower standard of whether enough information was given.
Among other things, he said the electoral roll for Selangor at over RM300 was not prohibitively expensive.
Six court orders sought by Selangor
The Selangor government had asked for a total of six declarations from the courts, including a declaration that the EC had breached constitutional provisions under Clauses 2(c) and 2(d) of the Thirteenth Schedule — which pushes for approximately equal number of voters in constituencies, as well as consideration of maintenance of local ties and inconveniences caused to voters when voting boundaries are altered.
It also applied for the courts to declare that the EC’s failure to use the latest electoral roll of Peninsular Malaysia in the redelineation exercise was unconstitutional and had made the entire proposal defective and invalid, and that the latter’s reliance on an incomplete and inaccurate electoral roll for Selangor had also invalidated the redelineation exercise.
It also said the courts should declare that the EC’s failure to give detailed information for its planned redelineation exercise had caused voters, local authorities and state governments to be unable to meaningfully exercise their constitutional right to object to the proposal.
The Kuala Lumpur High Court today decided to grant a stay to freeze the EC’s local enquiries in Selangor, until the end of an appeal by the Selangor government on today’s decision.
Later when outside the courtroom, Selangor Mentri Besar Datuk Seri Azmin Ali noted that the Selangor government’s lawsuit was dismissed as it was ruled to not have been adversely affected by the redelineation exercise.
“However the court recognises that the EC had failed to come up with the rebuttal evidence on some of the complaints that we have raised in court, which is gerrymandering and also malapportionment.
“So because we feel very strongly on these particular issues, on the complaints that we received from the different entities and from Selangor voters, we have decided that we will pursue this case at the higher court and I will discuss further with the legal counsel to proceed with our appeal to the Court of Appeal,” he said, adding that he was glad that the stay order had been granted.