HIGH COURT DECIDES THAT TWO MP’S LEAVE APPLICATION FOR JUDICIAL REVIEW TO CHALLENGE THE ELECTION COMMISSIONS REDELIENATION PROCESS IS ‘FRIVOLOUS’
The Election Commission had on the 8th of March published in the main news print that the 2nd enquiry on the delimitation will take place all over the country except for Selangor.
But in the notice above the “effect” of the delimitation as set out in Section 4(a) of the Thirteenth Schedule of the Federal Constitution was not provided.
This prompted me to write a letter to the Election Commission (EC) asking for the factors which were or were not taken into account when the Ipoh Barat voters attended the first inquiry on 01.11.2016. The EC replied immediately without providing any answers to the matters I asked but said the 2nd inquiry process will commence soon. Thus the EC failed and neglected to give a reply!
By reasons of the above Ipoh Timur MP Thomas Su and I filed an application to review the decision of the EC. The matter was heard in full on the 18th April 2017.
Today, 05.05.2017, the Ipoh High Court, presided by Y.A Che Ruzima Ghazali, decided that the two applicants, namely the Ipoh Barat and Ipoh Timur MPs’ application for leave for Judicial Review to challenge the Election Commissions’ Redelienation process as unconstitutional was frivolous and that there isn’t an arguable case for the applicants
In the meantime the Malacca High Court presided by Y.A Vazeer Alam Mydin had heard a similar JR and had allowed it on the basis that the court felt there are cogent grounds to challenge the EC.
We had even given the Malacca High Courts application for JR which was similar to ours to the Judge in the Ipoh High Court as it was of persuasive value when the Ipoh judge delivers his decision. To our utter shock and disappointment the Judge dismissed our application for JR basically that our application was frivolous.
The High Court Judge summarized that there were 6 issues to be dealt with which were :
1. Selangor’s exclusion from this whole process;
2. Whether the Election Commission adhered to Section 4(a) of the 13th Schedule of the Federal Constitution;
3. Whether the Notice and/or Proposed Recommendations were issued without jurisdiction;
4. Whether the Notice and/or Proposed Recommendations were unconstitutional;
5. Whether the First Local Enquiry on 01.11.2016 for Ipoh Barat was unlawful; and
6. Whether the First Local Enquiry on 01.11.2016 for Ipoh Timur was unlawful.
He held that all the 6 issued were frivolous in nature and that there isn’t any arguable case of whatsoever to be heard at the Judicial Review trial proper. He further held that the Applicants can ventilate all the above issues in the Second Local Enquiry, yet to be held and that this is premature.
Selangor’s exclusion does not make it unconstitutional as the 2 year period for the whole redelienation process has not been completed.
The Judge held that he was bound by the Court of Appeal case of See Chee How and Nurul Izzah and that it is binding per the doctrine of stare decisis.
Although we have lost in this application we still feel there is hope to succeed if this application is taken up to be argued in the Court Of Appeal. Discussion amongst lawyers and other stakeholders would be held soon to decided on this matter
Also I would like to thank the team of lawyers who assisted us in this fight namely Surendra Ananth, Suresh, N.Selvam and A. Vemal. The Respondents were represented by Senior Federal Counsels, Suzanna Atan, Azizan Md Arshad. Shamsul Bolhassan and Nik Azrin Zainun.
The Court should have questioned the EC when it refused to give reasons on why matters we had argued before the tribunal was not divulged to us. By not questioning or by saying not all is lost as we have another opportunity at the 2nd enquiry shows that the court has missed a golden opportunity to right a wrong done by the EC.
The Court should be the guardian of our Federal Constitution. Any thing less is unacceptable. It should be bold like in the case in Malacca to haul up the EC and instruct them to act at the behest of the voters of our country.
The failure of the EC to adhere to one man one vote as stipulated by the Federal Constitution, wherein the number of electors within each constituency in a State ought to be approximately equal pursuant to Section 2(c) of the Thirteenth Schedule of the Federal Constitution should have jolted the Court to its core. A great judicious act was missed today.
M. Kula Segaran
Member of Parliament for Ipoh Barat