Experts: EC breaching constitution, objectors denied hearing

The Election Commission (EC) has breached the Federal Constitution by wrapping up its final report on the redrawing of electoral boundaries without first completing local inquiries to hear objections.

According to Bersih acting chairperson Sharul Aman Mohd Saari, only about 20 percent of the objections for the second round of local inquiries in Selangor has been heard thus far.

"There are about 200 more objectors who are now denied their constitutional right to be heard. This is a violation of the Federal Constitution," he told Malaysiakini.

Sharul said the submission of the report to the prime minister yesterday came as a surprise as EC chairperson Mohd Hashim Abdullah was reported as saying two days ago that the commission would not "rush" the report because it was a "complicated" process.

According to Article 5 of the Thirteenth Schedule of the Federal Constitution, the EC “shall” hold local inquiries for objections from state governments, local authorities or groups of voters.

Constitutional law experts say the term "shall" in the Federal Constitution is deemed to be interpreted as "must".

EC ignored MBPJ's objection

There have been two rounds of local inquiries in Selangor thus far although the second local inquiry was only held over four days from Feb 26 to March 1.

Petaling Jaya City Council (MBPJ), which submitted their objections for both local inquiries, were among those not called to attend.

MBPJ councillor Derek Fernandez (photo) said the council was duty-bound to object to malapportionment even if the EC was recommending for the boundaries to remain unchanged.

He argued that to maintain the same boundaries despite changes in demographics, local ties and population is in itself a recommendation that would affect the various constituencies.

"The parliament seat of Petaling Jaya Utara and the state seat of Bukit Gasing has far too many voters compared with the national average or even Selangor.

"By not calling MBPJ to address the local inquiry after it filed an objection is, in my opinion, a breach of the Federal Constitution," said Fernandez, who is also a veteran lawyer.

No respect for due process

Latheefa Koya, counsel for the Selangor government in its suit against the EC, said that as of last Friday, lawyers for the EC had told the Court of Appeal that the local inquiries had yet to be completed.

Moreover, said Latheefa, the EC's submission of its final report to the prime minister would suggest that the commission was ignoring pending cases on the redelineation brought against it by the Selangor government.

"Our appeal process has yet to be exhausted. Another one of our cases will be heard on March 23. If the final report is submitted, our appeal becomes academic.

"There should be some basic respect for the process," she said.

The EC's decision to submit the report to Prime Minister Najib Abdul Razak came hours after the Selangor government's latest setback in its attempt to halt the local inquiries.

Fernandez said that the various court decisions related to Selangor's suits against the EC appeared to indicate that Selangor voters have no legal remedy when it came to challenging the commission's recommendations for electoral boundaries.

"If the EC is immune from judicial review, then the EC is above the law. Period," he said. - Mkini