THE Court of Appeal will decide on the Selangor government’s legal challenge against the Election Commission’s redelineation exercise  on Thursday, a day after the EC’s report on the redrawing of electoral boundaries is tabled in Parliament.

Selangor counsel Ambiga Sreenevasan said the tabling of the EC report tomorrow would not negate Thursday’s decision. 

“In my view, it’s not academic. We’re talking about the initial process. If it’s problematic then it carries all the way through to the end. 

“Even acts of Parliament that have been passed can be challenged in court later. We take the view that this is not academic. So it’s up to them (Parliament) whether they want to wait for the (court) decision or whether they want to proceed,” she said. 

Selangor, which is controlled by the federal opposition, today submitted its appeal against the Kuala Lumpur High Court’s decision to dismiss the state’s judicial review application in December.

Selangor had sought a declaration that the EC had violated constitutional provisions in the redelineation of election constituencies, leading to gerrymandering and malapportionment in the number of voters in seats.

Justice Ahmadi Asnawi led the bench with Vernon Ong and Abdul Karim Abdul Jalil today. 

EC director chairman Mohd Hashim Abdullah and secretary Abdul Ghani Salleh are represented by senior federal counsels Amarjeet Singh, Alice Loke, Suzana Atan, Shamsul Bolhassan, and Azizan Arshad. 

Selangor lead counsel Cyrus Dus told reporters the state government felt the “constitutional issue” of whether the current electoral roll would be used in GE14. 

Selangor has asserted that the current electoral roll is the supplementary electoral roll published in July 2016, before the notice of the commencement of redelineation in September 2016. 

“We have taken the position that these are legal questions and therefore they are open to the court to determine as to whether there has been compliance with 13th schedule of the federal constitution and Article 113. 

“And we have argued there’s a difference between what Parliament can decide and what is the matter for the courts to decide. Any question of law or legality of any action or decision on the constitutionality of it is for the courts to decide,” he said.

Cyrus said the recommendations made by the EC are open to judicial review and is subject to the judicial process.  

During the hearing, Cyrus told the court the EC is subject judicial review and that its recommendations fall within Order 53 of the Rules of Court 2012

Cyrus said although High Court judge Azizul Azmi Adnan had dismissed Selangor’s judicial review application, the judge had found  the allegations of malapportionment and gerrymandering in Selangor “have been made out, to the extent that they are supported by credible evidence and to the extent that they have not been specifically refuted by the respondents” 

It was submitted to the High Court that the ratio of the largest to smallest parliamentary constituency in Selangor had worsened from 3.29:1 to 4.05:1, while that of the state constituencies had deteriorated from 3.70:1 to 4.39:1.

It was also submitted the transfer of voters had increased from 17 to 30 the number of constituencies with more than 60% Malay voters, and from five to eight the number of constituencies with more than 60% Chinese voters.

Selangor said the transfer of voters had also increased the number of safe and marginal seats for the ruling Barisan Nasional coalition.

It was also submitted the transfer of voters had increased from 17 to 30 the number of constituencies with more than 60% Malay voters, and from five to eight the number of constituencies with more than 60% Chinese voters.

Selangor said the transfer of voters had also increased the number of safe and marginal seats for the ruling Barisan Nasional coalition.

The state government made four points against the constitutionality of the EC’s actions and proposals, which are that they violate Article 113 and the Thirteenth Schedule as they cause a malapportionment of electoral seats and are a product of gerrymandering; that they are in breach of Section 3 of the Thirteenth Schedule as they are not based on the ‘current electoral rolls’ as required by the federal constitution; that they rely on the locality codes rather than the actual addresses of voters in the Delimitation Exercise, whereby there are missing addresses of 136,272 voters in the state of Selangor; and that the EC has acted in violation of the rules of natural justice and of the legitimate expectation of voters, local authorities and state government by the failure to provide adequate information and particulars of its proposals such as to deny the opportunity of making a meaningful representation of the local inquiries.

He said the EC could not claim to exercise its powers of discretion and expect by that to explain away serious matters such as gerrymandering and malapportionment.

Cyrus said the EC may be answerable to Parliament for the acceptability of its proposals but it is also answerable to the courts for the legality of its recommendations and steps taken in the process of redelineation.

“It is trite (common knowledge law) that the legality of the actions taken by a public body cannot be decided by a majority vote in Parliament. In a democratic system based on the Westminster model, as ours is, the legality of the actions of public bodies is reserved for the courts of law to decide and not by a vote in Parliament,” he said. 

The opposition has urged Dewan Rakyat Speaker Pandikar Amin Mulia to withdraw the motion to table the EC’s redelineation report in Parliament, which is to take place tomorrow, saying it would be unconstitutional to proceed with the debate.

A copy of the embargoed redelineation report has since been leaked on the website of electoral reform pressure group Engage. – March 27, 2018.