Selangor questions logic in EC's attempt to shirk judicial review

The Selangor government today questioned the logic in the Election Commission’s (EC) argument that its proposals cannot be subject to judicial review, saying that this would only make it easier for the executive branch to exert control over the delimitation of electoral constituencies.   

The EC, represented by the Attorney-General’s Chambers, had previously argued that the question of delimitation notices and electoral rolls should not be subject to judicial review.

They claimed that that these are merely recommendations and not decisions, and therefore should not be justiciable.

Derek Fernandez, representing the state government, told the High Court in Kuala Lumpur if this “absurd” scenario came to pass, the courts would not be able to impose any checks on the EC.

"With this, the party which has the majority can do what it wishes when it comes to delimitation.

"On one hand, they claim they are under a legal duty to do certain things under the Federal Constitution, but yet they say they are not accountable to the court if they do not do the things that the Constitution says that they must do.

"So who are they accountable to?

“As a constitutional body, the EC are not legally accountable to Parliament. They are accountable to the Constitution which is the prime law of the land, and therefore they must be accountable to courts who are the interpreters of the Constitution," he said.

Fernandez warned that the whole spirit of constitutional democracy would be hijacked if the parliamentary majority were to exert control over the electoral process.

The Selangor government is seeking to challenge the EC's present delimitation exercise, and compel the EC to publish a new notice.

Voters and constituency size defers

Besides this, senior lawyer Cyrus Das said these recommendations are reviewable by the court, as he pointed out that the delimitation exercise carried out last year had resulted in the Petaling Jaya Utara constituency – now renamed Damansara – to go from 80,000 plus voters to 150,000 voters.

"Damansara has four times the number of voters compared to Sabak Bernam and this could hardly qualify as "approximately equal" as stipulated in the Thirteenth Schedule," he added

Cyrus said some constituencies in Selangor are majority Malay, such as Kapar, while some like Sungai Pinang and Klang are primarily Chinese.

"The EC must explain why voters have been shifted in constituencies along ethnic lines,” he said, citing the example of the Seri Andalas state seat.

"It is the most glaring example where about 30,000 non-Malay voters are proposed to be moved out (if recommendations are allowed)," the senior lawyer said.

Cyrus said that as the senior federal counsel representing the EC had not responded to any of the affidavits or arguments posed by the Selangor government, then a decision should be made in favour of the plaintiffs.

No denial to former EC chair affidavit

Ambiga Sreenevasan, also representing the Selangor government, pointed to the affidavit by former EC chairperson Abdul Rashid Abdul Rahman, in which he denied that there was any destruction of the addresses and locality names of voters during his tenure.

"This has not been rebutted by the EC, and hence the court should also accept what Rashid, who led the EC at the essential time from 2000 to 2008, to be true," she said.

Ambiga said the Selangor government is challenging the EC for the sake of accountability so that the public would regain confidence in the electoral system.

The lawyer pointed to the case of a voter who affirmed in an affidavit that she had been slated to vote in one constituency, while her husband and children, who are living in the same house, are voting in another.

"As a constitutional body, EC should carry out their tasks with responsibility and provide answers. The EC should also provide easy access for voters to gain information on the delimitation exercise and not force them to check with various agencies to seek information," said Ambiga.

Justice Azizul Azmi Adnan has fixed Dec 7 to deliver his decision on the merits of the judicial review.- Mkini