Delineation: Courts can inquire into complaints, says lawyer

Lawyer Cyrus Das (left) says EC’s unconstitutional proposals cannot be decided based on a vote count in the Dewan Rakyat. With him is counsel Ambiga Sreenevasan.

PUTRAJAYA: The judiciary can declare the Election Commission’s (EC) exercise in redrawing the electoral boundaries as illegal if guidelines in the 13th Schedule of the Federal Constitution have not been followed, the Court of Appeal heard today.

Constitutional lawyer Cyrus Das said in Malaysia it was the constitution that was supreme and not Parliament.

He said the judiciary could not abdicate its powers to some other organs of the government under the doctrine of separation of powers.

“If a legal or constitutional objection is made, it is not for Parliament to decide based on a vote count but for the court to rule on law and facts,” Das said in his submission.

The Selangor government is appealing against a High Court ruling last year which dismissed the state’s judicial review application to challenge the EC’s exercise.

Das, who is assisted by Ambiga Sreenevasan and Derek Fernandez, said redrawing of boundaries in the state was littered with malapportionment and gerrymandering to favour certain parties.

“We made these allegations during the hearing in the High Court but the EC did not bother to reply. So the allegations made are assumed to be correct,” he told a three-man bench chaired by Ahmadi Asnawi.

The other judges are Vernon Ong Lam Kiat and Abdul Karim Abdul Jalil.

Das further said the state had locus standi to file the complaint in court because it was an affected party as a result of the EC not adhering to constitutional guidelines.

He said his client was challenging the EC because it had presented its recommendations to the prime minister to be presented in the Dewan Rakyat.

“A legal challenge is instituted as the EC’s proposal is ultra vires as all the principles set out in the 13th Schedule have been violated.”

Das said the state could challenge the EC because it had made a determination before presenting its recommendations to the prime minister.

“The term determination under Section 4 of the 13th Schedule, in essence, means that the EC has made a decision which is now open to a challenge in a court of law,” he added.

He said two Court of Appeal panels last year dismissed appeals brought by a group of Melaka voters and two opposition MPs from Perak, and the Federal Court last month also refused both leave to appeal.

Das said this bench was not bound by the Court of Appeal or Federal Court decisions.

“It is trite law that refusal of leave does not imply that the Federal Court had approved the respective Court of Appeal judgments,” he said.

Government lawyer Amarjeet Singh, in his rebuttal, said the state, local authorities and any group of 100 voters should have gone to the local inquiries to express their dissatisfaction.

“Instead, the state filed a court action,” he said, adding that the Selangor government was not an aggrieved party because no decision was made by the EC that affected them.

He said the EC merely submitted proposals as any decision on its recommendations would be made by Dewan Rakyat members.

“In any event, this appeal is academic as the EC has already presented its report to the prime minister. The judiciary can no longer encroach into the function of the legislature,” he said.

The Court of Appeal will deliver its ruling on Thursday.

On Dec 7, Justice Azizul Azmi Adnan said his decision to dismiss Selangor’s case was partly due to two binding Court of Appeal rulings arising from the EC’s appeal against voters in Melaka and two MPs.

However, the judge acknowledged that the EC had failed to come up with rebuttal evidence on some contentious issues raised by the state.

Azizul dismissed all four grounds canvassed by the state. They were over alleged malapportionment and gerrymandering in most constituencies, names of 136,000 voters were apparently missing, the EC had failed to use the latest electoral roll to conduct its exercise, and a lack of information in the notice before the boundary redrawing exercise was to be carried out.