Bersih wishes to remind the courts and judges of their duty to uphold the Federal Constitution.
In July, four Johor voters were successful in obtaining leave at the High Court to challenge the Electoral Commission’s delineation exercise, given the excessive gerrymandering and malapportionment in the proposals.
On 26 October 2017, the Court of Appeal was due to hear the Attorney General’s Chambers’ appeal against the decision to grant leave.
The voters subsequently made a strategic decision to discontinue their case in order to prevent the possibility of another unfavourable judgement against voters challenging delineation. This decision to discontinue was communicated to the Attorney General’ Chambers in advance of the hearing to which they had no objections.
Senior federal counsel Amarjeet Singh again confirmed to the voters’ counsel before the hearing was due to begin that the Attorney General’s Chambers would be forced to withdraw their appeal due to the discontinuation.
However, when the voters’ counsel informed the Court of Appeal judges, Justices Mohd Zawawi Salleh, Abdul Rahman Sebli and Kamardin Hashim of the decision to discontinue the action at the High Court, the judges stated they will make a decision regardless. Against previous assurances, Amarjeet then said his instructions were to proceed with the appeal.
The judges refused a request for an adjournment to return for oral submissions and decided the written submissions were sufficient to make a decision. The panel then announced their decision to allow the Attorney General’s Chambers appeal and set aside the High Court’s decision to grant leave for judicial review.
Bersih 2.0 is extremely concerned with how the matter developed, as there is no reason why the Court of Appeal insisted on proceeding with the appeal when the voters, through their counsel, had intimated to the court that they no longer wish to pursue the action at the High Court. This move to make a ruling on a case that would be withdrawn is highly irregular and wrong in law.
Furthermore, it is clear the Attorney General’s Chambers misled the voters’ counsel in saying that they would not proceed with the case, but then informed the panel of the opposite.
To date, seven cases have reached the Court of Appeal or Federal Court, challenging the constitutionality of the Electoral Commission’s delineation exercises. These include cases from Sarawak, Kuala Lumpur, Perak, Malacca, Johor and Selangor.
The duty of the judiciary to uphold the Federal Constitution and voters’ rights
On Monday, the Court of Appeal allowed the Electoral Commission’s appeal against an injunction obtained by the Selangor state government, preventing the commission from handing over its final report to the prime minister until the completion of the High Court proceedings.
This latest decision maintains the Electoral Commission’s 100% record in the Court of Appeal and Federal Court on delineation cases.
The Court of Appeal ‘special panel’ judges, namely Justices Mohd Zawawi Salleh, Abdul Rahman Sebli and Kamardin Hashim, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim, Idrus Harun, Ahmadi Asnawi and Suraya Othman, have consistently ruled that the rakyat are unable to challenge the proposals put forward by the Electoral Commission. This effectively means that the commission is free reign to act contrary to the provisions of the Federal Constitution in each step of the delineation process.
It is therefore necessary to remind the courts and judges of their duty in upholding the Federal Constitution. Voters and the rakyat must have an avenue to challenge unconstitutional actions that go against the principles of free and fair elections. Without the judiciary providing this protection, unscrupulous parties, intent on manipulating elections for their own ends, are left free to do so, with no regard for the Constitution.
Bersih 2.0 steering committee