Lawyer: EC’s boundary redrawing subject to judicial scrutiny

KUALA LUMPUR: The Election Commission (EC), which is a body created by the Federal Constitution, cannot be accountable to Parliament, the High Court was told today.

Lawyer Derek Fernandez said instead, the EC was accountable to the constitution which was the supreme law of the land.

“Therefore, they (EC) must be accountable to the courts which are the interpreters of the constitution,” said Derek, who was making his submission on behalf of the Selangor government.

Derek said the spirit of constitutional democracy envisaged in the constitution would be easily hijacked if Parliament had the final say.

“The constitution will be easily hijacked by allowing the majority to control the fairness of the electoral process and render ineffective a free and fair election,” he said.

The EC has taken the stand that the PKR-led state government could not question the on-going redelineation exercise as it was merely making proposals that would be finally submitted to the prime minister for Parliament’s approval.

Derek said if the EC’s argument was to be followed, then they were saying that no court of law could question their recommendations to the prime minister.

He pointed out the absurdity of the EC’s argument that they were under a legal duty to do certain things under the constitution but yet not accountable to the court if they did not do things that the constitution said they must do.

Meanwhile, lawyer Cyrus Das submitted that the EC’s failure to deny the allegations of malapportionment and gerrymandering contained in their proposals would invalidate the constitutionality of the present recommendation.

He said the use of the 2015 principal electoral roll for the present delineation exercise was also unlawful.

“The meeting held on July 14, 2016 was not a meeting of the EC as it was chaired by its secretary. The secretary of the EC is not one of the seven members appointed by the king,” he said.

On Oct 19 last year, Selangor menteri besar Mohamed Azmin Ali, filed a judicial review application to challenge the proposed redelineation of electoral boundaries for parliamentary and state constituencies.

He is seeking a declaration that the proposed redelineation is unconstitutional and inconsistent with Clauses 2(c) and 2(d) of Article 113(2) of the 13th Schedule of the constitution.

He is also seeking a declaration that the EC’s failure to use the latest electoral roll in the redelineation was unconstitutional.

Azmin also wanted the EC to correct and update the addresses of the 36,272 voters, whose addresses had gone missing from the electoral roll.

Azmin filed the application on the grounds that the EC had acted unconstitutionally, unreasonably and irrationally against Article 113(2) of the constitution.

Justice Azizul Azmi Adnan will deliver his verdict on Dec 7. -FMT