Ex-judge says court failed to use its additional powers in EC case

Paragraph 1 of the Courts of Judicature Act 1964 gives judges the additional power to remedy a wrong, especially on fundamental rights enshrined in the Federal Constitution, says Sri Ram.

PETALING JAYA: The courts have additional powers to check on illegality and correct any injustice with regard to complaints against the Election Commission (EC) in carrying out the redelineation exercise, a retired judge said.

Gopal Sri Ram said judges could then issue the appropriate order to compel the EC to act in accordance with the law.

“The law is that if the EC acts contrary to the Federal Constitution in the exercise of its powers, then the court can examine the legality of the conduct.

“If there is either illegality in the way in which the power is exercised or any injustice has resulted because of the exercise of its powers, the court can issue the appropriate order to compel the EC to act in accordance with the law,” he told FMT.

Sri Ram said these were all well established and elementary principles and should have been adhered to by the Court of Appeal whose recent decision, he added, was wrong in law.

The former Federal Court judge said this in response to a recent Court of Appeal decision which held that the Dewan Rakyat was the penultimate decision maker on any proposal made by the EC on redrawing of election boundaries.

The appellate court, in allowing an appeal by the EC against seven voters from Melaka, ruled that 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 proposed recommendations,” said Justice Hasnah Mohammed Hashim who delivered the court judgment.

The seven – Chan Tsu Chong, Neo Lih Xin, Azura Talib, Lim Kah Seng, Norhizam Hassan Baktee, Amir Khairudin, and Amran Atan – were representing voters from the Kota Melaka and Bukit Katil parliamentary seats in challenging the EC’s proposed re-delineation exercise which they deemed “unconstitutional”.

Hasnah said the findings and recommendations of the EC were not reviewable under Order 53 of the Rules of Court 2012 and that the High Court judge in Melaka had gravely erred in granting leave to the seven voters.

This was the ruling that bound High Court judge Azizul Azmi Adnan who, on Dec 7, dismissed Selangor’s judicial review application to challenge the EC’s exercise in drawing the electoral boundaries.

Sri Ram said the Court of Appeal had overlooked the wide powers conferred on a court by Paragraph 1 of the Courts of Judicature Act 1964 which was an additional power to the other powers a court already had.

Paragraph 1 reads: “Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.”

Sri Ram said: “It may be seen that the court has power to issue orders against any authority. This includes the EC which is a public authority.”

He said Paragraph 1 was taken from Article 226 of the Indian Constitution.

That article reads:: “Every High Court shall have power… to issue to any person or authority… directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

Sri Ram said the wording was very similar in respect of the powers that a High Court had.

He said in the case of Dwarka Nath, the Indian Supreme Court held that, “This article is couched in comprehensive phraseology and it ex facie confers a wide power on the high court to reach injustice wherever it is found.”

Sri Ram said: “Our Paragraph 1 makes it clear that the power extends to protecting fundamental rights and for any other purpose.” He added that the Court of Appeal had overlooked this important provision and its reach. -FMT