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Saturday, December 30, 2017

Courts fail voters in EC redelineation challenges, says Sri Ram

Retired judge, lawyer say voters suffered a setback as courts were not prepared to hold EC accountable over redrawing of boundaries and procedural issues.
Sri-RamPETALING JAYA: The year saw superior courts – the Court of Appeal and the Federal Court – delivering numerous judgments that touched on the basic constitutional rights of citizens.
The most significant were legal challenges mounted by voters and the PKR-led state government in Selangor against the Election Commission (EC) for its alleged failure to follow procedures and demarcate election boundaries as required under the Federal Constitution.
Lembah Pantai MP Nurul Izzah Anwar and 10 voters were the first to fail when the Court of Appeal in February ruled the EC followed procedures fairly in conducting the first local inquiry in that constituency.
In July, the Court of Appeal allowed the EC’s appeal against a Melaka High Court’s decision that gave leave for judicial review to seven voters in the state.
In its written judgment delivered on Nov 28, the bench said the Dewan Rakyat is the penultimate decision maker on any proposal made by the EC and the court cannot usurp that function.
“The Federal Constitution confers on the House of Representatives (Dewan Rakyat) the constitutional duty either to approve or reject the recommendations,” Justice Hasnah Mohammed Hashim said.
She said the findings and recommendations of the EC were not reviewable and that the High Court judge had gravely erred in granting leave to the voters.
A month later, the Court of Appeal which dismissed an appeal by Ipoh Barat MP M Kulasegaran and Ipoh Timor MP Thomas Su Keong Siong said courts cannot interfere in the duties and functions of the EC in redrawing electoral boundaries.
Justice Kamardin Hashim, who delivered the written judgment in October, said the action of the two MPs to challenge the delineation process was, therefore, premature as the EC only made suggestions to Parliament.
In early December, High Court judge Azizul Azmi Adnan dismissed Selangor’s challenge against the EC, largely on the grounds he was bound by the Court of Appeal ruling in the Melaka case.
Complaints about gerrymandering
The EC is now currently conducting the local inquiries in Selangor which must be completed by September next year.
The state’s complaint was that the EC had indulged in malapportionment and gerrymandering exercises in most constituencies. The state government claimed the names of about 136,000 voters were missing, and that the EC had failed to use the latest electoral roll to conduct its exercise, and there was a lack of information in a notice issued last year before the boundary redrawing exercise was to be carried out.
Retired Federal Court judge Gopal Sri Ram said the court cannot leave it to the Dewan Rakyat to decide, saying it could amount to failing its judicial function.
“What the voters are complaining about is the unconstitutional conduct of the EC and the court has ample powers to hold them accountable,” he said.
Sri Ram said the right to vote was a fundamental right and the EC was enjoined by law to act fairly and in good faith in carrying out the delimitation exercise.
He expressed concern over recent court decisions, and said appellate judges including those from the Federal Court should appreciate the role of law in the sphere of constitutionalism.
He said it took real judicial courage to administer the law of the constitution in accordance with established principles and provide remedies to voters.
“Judges like Azizul and Lau Bee Lan represent the brave spirit of constitutionalism. Unfortunately, they are few and far between,” said Sri Ram.
“One can only hope there will be more Azizuls and Laus who will occupy the Court of Appeal and the Federal Court,” he said.
Bar Council constitutional law committee co-chairman A Surendra Ananth said although the EC did not properly consider the objections during inquiries but the substantial number of complaints by voters revealed the heightened awareness of their rights.
“It also showed that the public are willing to be part of the electoral process by trying to ensure the procedure is fair and constitutional,” said the lawyer who was in the legal team in two of the four cases in the Court of Appeal.
Surendra said it was also heartening to know that voters this time had gone beyond their traditional role of casting their ballots during elections.
Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said the number of serious challenges posed only showed that voters lacked confidence in the EC, and that was why they “came to court with their grievances”. -FMT

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