Courts must uphold Constitution – not grant Electoral Commission impunity

The Coalition for Clean and Fair Elections (Bersih 2.0) condemns the decision of the Kuala Lumpur High Court to dismiss the leave application for judicial review by 48 voters from Segamat against the inclusion of 949 army voters and their spouses in the supplementary electoral roll.

This case was filed after the same case was dismissed in February on technical grounds that the case was filed prematurely and at the time of filing, had not exhausted the objection appeal process at the Electoral Commission level. Upon re-filing the case at the KL High Court, however, the case was dismissed because the subject matter – the issue of transferring the 949 army voters and their spouses under unconventional methods – had already been gazetted.

Timeline:

October 2017 – Army officers are transferred

November 2017 – 949 Objections are filed against the 949 army voters

4-10 December 2017 – Local inquiries are held by the Electoral Commission
The 48 voter go on to appeal the results of the local inquiry within the Electoral Commission

14 December 2017 – 48 Voters filed a judicial review application at the KL High Court

20 December 2018 – Attorney General’s Chambers made a preliminary objection to the judicial review

2-7 January 2018 – Appeals by the applicants to the Electoral Commission were heard and dismissed

8 January 2018 – The KL High Court grants leave for judicial review and a stay halting the Electoral Commission from gazetting the names of 949 army members and their spouses

10 January 2018 – Attorney General’s Chambers appeals against the application for leave

21 February 2018 – Court of Appeal allows the appeal on the grounds that the case was filed prematurely without first exhausting the process at the Electoral Commission level; the Electoral Commissionimmediately gazettes the 949 army officers.

26 February 2018 – The judicial review is refiled

20 March 2018 – The judge dismisses the application for leave on the grounds that the 949 voters have already been gazetted and cannot be challenged in court under Section 9A of the Elections Act.

The judicial review application by the 48 voters was re-filed immediately as per regulation after the case was dismissed in February, during which time the Electoral Commission’s appeal process had failed.

The Electoral Commission’s move to gazette the 949 voters on the very day the Court of Appeal lifted the stay order clearly shows that the Electoral Commission acted in extreme bad faith by seeking to close all avenues to justice for the 48 voters and pushing through the transfer of the 949 army officers. Using Section 9A as a blanket of impunity, the Electoral Commission has decided to cover their tracks and effectively shut down all avenues of justice for the 48 voters.

The Kuala Lumpur High Court should not have given Section 9A more weight that Article 119 of the Federal Constitution – the highest law in the land – which clearly states that a voter must reside in the constituency in order to cast their vote there during the elections.

Furthermore, the learned judge should have considered all the factors and whether the process which had led to the gazetting of the 949 army officers and their spouses was conducted properly, fairly and in the interest of the voters as well as clean and fair elections. If the process which had led to this outcome did not allow for the 48 voters to adequately present their case, then it follows that the gazetting of the 949 voters should be rendered null and void.

Section 9A of the Elections Act 1958 is an amendment which was adopted in 2002, and it states that once an electoral roll has been certified or re-certified by way of publication in the Federal Gazette, it is final and binding and therefore cannot be challenged in any court. This law by itself is undemocratic and unconstitutional as the doctrine of separation of powers clearly distinguishes the judiciary as a separate, independent and supreme branch of governance, aside from Parliament and the government. As such, Barisan Nasional cannot and should not push undemocratic laws through Parliament by utilising its law-making powers in order to limit the role of thecCourt as an avenue for justice.

It is clear to Bersih 2.0 that the transfer of these 949 voters is an attempt to derail clean and fair elections in order to keep Barisan Nasional in power. The evidence that all the democratic checks allowed this obvious misuse of Electoral Commission powers to persist, in spite of efforts to address electoral manipulation by transferring army voters into marginal seats, is a clear indication that these voters serve the same purpose as phantom voters.

Bersih 2.0 urges all citizens, organisations, bodies, and members of Parliament to speak up and hold the Electoral Commission and the courts accountable for a misapplication of justice. Bersih 2.0 believes that the role of the courts in any democratic system is to deliver justice where access has been denied through official channels.

That is why it is so important that the judiciary remains independent from political and governmental influence. We also urge the MPs, courts and other democratic bodies to repeal Section 9A of the Elections Act to allow challenges to the electoral roll in court – especially in correcting the many discrepancies in the electoral roll.

“This court decision cannot be allowed to go unchallenged simply because this will set the precedent which will allow for electoral fraud and the erosion of the rights and voice of the voter to meaningfully determine the future of Malaysia in all coming elections. All Malaysians must come together to highlight, challenge, protest and stand against any and all efforts to silence the people and diminish the right of the voter,” said Bersih 2.0 acting chairperson Shahrul Aman Mohd Saari.

Satukan tenaga, kalahkan penipuan.

Jom mengundi.

Bersih 2.0 steering committee
22 March 2018

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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