THE Court of Appeal today dismissed the Selangor government’s appeal to challenge the Election Commission’s re-delineation of electoral boundaries, saying the state government’s complaints of gerrymandering and malapportionment are not subject to a trial in the court of law. 

In the judgment read out by justice Vernon Ong, the court ruled that Selangor has locus standi, or the right, to challenge the re-delineation in court. 

But the court did not rule in favour of Selangor regarding its claims of gerrymandering, unfair re-delineation and complaints of malapportionment, on the basis that it is not justiciable.

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

In its unanimous decision, the court also ruled that the EC should have included the supplementary roll, released in September, 2016, to the electoral roll. 

However, it also referred to Section 9A of the Elections Act 1958, which prevents judicial challenges on electoral rolls that have already been gazetted.  

No order to costs was awarded. 

The Pakatan Harapan-controlled state government may appeal, said its lawyer Latheefa Koya.

“This is first time the court has actually gone into the full merit of the issue,” she told reporters after the ruling. 

“It is our argument that the EC has been using the wrong electoral roll, as it has not taken the supplementary roll published in September 14, 2016,” she said. 

The court today agreed with Selangor’s argument that the EC should use the current electoral roll. However, the court ruled in favour of the EC that its review for the re-delineation process began when it began meeting in July, 2016.

“Unfortunately because of that, they decided that the current roll does not include supplementary roll. Otherwise the point is made (by the court) that they (EC) should use the supplementary roll,” Latheefa said. 

“Of course the fact that they’re using an invalid roll without addressed and all that, we cannot challenge it under Section 9A,” she said. 

Latheefa said it was not the end of the road to challenge the re-delineation. 

“The other important point to note is that the court did not rule that this is an academic exercise. Because of that, we will be taking instructions from our client whether we will move forward with an appeal in the Federal Court,” she said.  

Selangor had appeal against the Kuala Lumpur High Court’s decision to dismiss the state’s judicial review application in December. 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 13th Schedule as they cause a malapportionment of electoral seats and are a product of gerrymandering.
• They are in breach of Section 3 of the 13th Schedule as they are not based on the ‘current electoral rolls’ as required by the federal constitution.
• 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.
• 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.

Selangor lead counsel Cyrus Das argued yesterday that EC may be answerable to Parliament for the acceptability of its proposals, but it is also answerable to the court for the legality of its recommendations and steps taken in the process of re-delineation.

Yesterday, the Dewan Rakyat passed the motion on the re-delineation of electoral boundaries, tabled by Prime Minister Najib Razak, with 129 parliamentarians voting in favour and 80 against it. 

Some 800 people, including opposition lawmakers and Pakatan Harapan chairman Dr Mahathir Mohamad participated in a handing over of a memorandum by Bersih condemning the re-delineation. – March 29, 2018.