Wednesday, September 20, 2017

Apex court allows EC to pose three questions in voters' suit

    Published     Updated
The challenge mounted by three Hulu Selangor voters on the Election Commission’s (EC) recent redelineation exercise will take longer than expected, as the Federal Court allowed the commission to pose three questions of law.

The three voters – P Maradeveran, Zahar Rusuli, and Yong Chan Hee – found themselves part of the Kuala Kubu Bharu state constituency after the EC’s redelineation exercise, having previously been registered in Batang Kali.

They filed suit in October last year, claiming that the EC had exceeded its powers under Section 7(2) of the Elections Act 1958 by shifting voters across state constituency boundaries without their knowledge.

A three-member bench, led by Justice Ahmad Ma'arop, said it unanimously allowed leave to the EC and the Attorney-General’s Chambers (AGC) for the questions be posed, including one on an ouster clause regarding Section 9A of the Elections Act 1958.

“We are unanimous in our decision, we feel there are question of law needed for further argument regarding the general principle,” Ahmad said.

The same bench had earlier dismissed former Bersih 2.0 chairperson Ambiga Sreenevasan’s challenge of an ouster clause in the Immigration Act 1959/63, after she was not granted leave to challenge her Sabah travel ban.

In the Hulu Selangor voters' case, the three questions allowed to be posed by the EC and AGC, led by senior federal counsel Amarjeet Singh, were:

1. Whether the decision of the EC reflected in the Federal Gazette PU (B) 197 dated April 29, 2016, and incorporated in the current electoral roll dated May 13, 2016, is rendered non-justiciable by virtue of Section 9A of the Elections Act 1958,

2. Whether the time runs from the date of publication in the Federal Gazette of a certified electoral roll as provided for under the Elections Act 1958, for the purpose of making an application under Order 53 rule 3(5) Rules of Court 2012, and

3. Whether the publication of a gazette constitutes sufficient communication of the decision of a public authority to the affected person under Order 53 Rules of Court 2012.

Section 9A of the Elections Act states that once an electoral roll has been certified, and notice of the certification has been published in the gazette, it shall be not be questioned, appealed against, reviewed, quashed, or set aside by any court.
 
In January, the High Court in Kuala Lumpur dismissed an application for judicial review brought by Maradeveran, Zahar, and Yong against the EC, which was subsequently overturned by the Court of Appeals.
The Appeals Court ruled that the voters were not out of time in filing the judicial review application, as it is based on the date the letter the EC sent on Aug 3, 2016, informing them of the move to Kuala Kubu Bharu, and not the earlier gazette dated April 29.

Gobind Singh Deo, appearing for the voters, said that since there is an ouster clause in Section 9A, and that the court had earlier dismissed Ambiga’s challenge to an ouster clause, the hearing should proceed to the High Court.

With this, the apex court will decide whether the judicial review can be made based on the April 29 gazette or the Aug 3 letter, as voters are allowed three months to challenge the electoral roll.

~ Malaysiakini

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