‘A section of the Elections Act is unconstitutional’

Calling it an ouster clause, the Bar Council said that such legislation attempt to reduce courts to mere administrative tribunals and undermines the doctrine of separation of powers.

PETALING JAYA: The Bar Council and a constitutional lawyer say a section of the Elections Act is unconstitutional as it reduces the courts to administrative tribunals and goes against the separation of the Executive and the judiciary.

Bar Council president Christopher Leong said that the clause Section 9 (a) of the Elections Act 1958  was unconstitutional as it prevents  judicial scrutiny of a decision made by the Executive.

Calling it an ouster clause, Leong said that there over 30 acts of parliament drafted in such manner, excluding the subsidiary legislations.

“Such ouster clauses attempt to reduce the courts to mere administrative tribunals and runs contrary to the doctrine of separation of powers guaranteed under the Federal Constitution,” said Leong.

On March 14, the Shah Alam High Court dismissed Klang MP Charles Santiago’s bid to compel the Elections Commission (EC) to review and clean up the electoral roll in his constituency.

In dismissing the DAP leader’s leave application, Justice Vernon Ong said that instructing the Elections Commission to review its electoral roll contravened Section 9 (a)  of the Elections Act.

Four days ago, PKR vice president Nurul Izzah Anwar also had her bid to clean up the electoral roll in Lembah Pantai thrown out under the same ouster clause.

Section 9(a) reads: “After an electoral roll has been certified or re-certified, as the case may be, and notice of the certification or re-certification has been published in the Gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by, any court.”

Leong said that ouster clause such as Section 9 (a) were attempts by the Executive or the Legislature to undermine the doctrine of separation of powers.

“It also renders the judiciary subordinate and is an attempt to subvert the principles of rule of law,” he said.

Constitutional lawyer Syahredzan Johan concurred with Leong’s assessment saying the legislation was unconstitutional.

“It denies the right of a citizen to participate in the democratic process of the country, to elect a government in free and fair elections which is guaranteed  under Article 119(1) of the Federal Constitution, “ he said.

Syahredzan also said that a citizen must be allowed to assert their right and challenge the electoral roll if it is suspected to have discrepancies.

“A citizen’s constitutional rights would be denied if he or she is unable to mount a challenge on the electoral roll in the court of law,” he said.