PUTRAJAYA: The year-long legal battle by two opposition MPs and seven voters from Melaka to challenge the Election Commission’s (EC) proposals in redrawing electoral boundaries has come to an end.
This is the result of the Federal Court today dismissing their leave to appeal applications against the judgments of two Court of Appeal panels.
A three-man Federal Court bench, chaired by Chief Justice Raus Sharif, said the applicants failed to satisfy the requirements under Section 96 of the Courts of Judicature Act 1964 to have the merits of their cases heard.
The provision states that applicants must satisfy the court that the legal questions posed were either of constitutional or legal significance and raised for the first time.
A total of 10 questions were framed by the applicants to obtain leave.
Raus, who delivered the unanimous ruling, said the bench was of the opinion that the EC had complied with the provisions in the 13th Schedule of the Federal Constitution in conducting the delimitation exercise proposals.
“It is our opinion that the EC’s recommendations are mere action and do not bind parties. So, its proposal is not amenable to judicial review,” he said.
Others on the bench were Justices Azahar Mohamed and Aziah Ali.
Raus said the constitution only entrusted the Dewan Rakyat to decide on EC’s proposal.
“It is our duty to uphold the principle and the court cannot encroach on the functions of other bodies (legislature and executive) mandated by the constitution,” he said.
In July, the Court of Appeal allowed the EC’s appeal against a Melaka High Court’s decision that gave leave for judicial review to seven voters in the state.
The seven – Chan Tsu Chong, Neo Lih Xin, Azura Talib, Lim Kah Seng, Norhizam Hassan Baktee, Amir Khairudin and Amran Atan – were representing voters from the Kota Melaka and Bukit Katil parliamentary seats in challenging the EC’s proposed re-delineation exercise, which they deemed “unconstitutional”.
In its written judgment, delivered on Nov 28, the Court of Appeal said the Dewan Rakyat is the penultimate decision maker on any proposal made by the EC and the court cannot usurp that function.
“The Federal Constitution confers on the House of Representatives (Dewan Rakyat) the constitutional duty, either to approve or reject the recommendations,” Justice Hasnah Mohammed Hashim said.
She said the findings and recommendations of the EC were not reviewable and that the High Court judge had gravely erred in granting leave to the voters.
In September, another Court of Appeal bench, which dismissed an appeal by Ipoh Barat MP M Kulasegaran and Ipoh Timor MP Thomas Su Keong Siong, said courts cannot interfere in the duties and functions of the EC in redrawing electoral boundaries.
Justice Kamardin Hashim, who delivered the written judgment in October, said the action of the two MPs to challenge the delineation process was, therefore, premature as the EC only made suggestions to Parliament.
Kamardin said the bench was bound by a Federal Court ruling which held that a recommendation by a tribunal, including a royal commission of inquiry, was not a decision that could be reviewed in a court.
Kulasegaran today said the apex court had missed the golden opportunity in upholding the democratic rights of voters for a free and fair election.
“In other Commonwealth countries, the court had stepped in to ensure a progressive election is held,” he said.
The DAP national vice-chairman said he had hoped the court would give the applicants leave and hear out their grievances, especially when there were allegations of malapportionment and gerrymandering.
“The court had made the EC look untouchable and it can now act in the interests of ruling government, but at the expense of voters,” he said.
Kulasegaran said the outcome in the Dewan Rakyat was a foregone conclusion as the EC’s proposal was likely to be approved as the Barisan Nasional had the simple majority to approve the recommendation.
The present provision in the constitution states that the EC must submit its proposal to the prime minister, who would then table it in the Dewan Rakyat for approval.
Chan said he was depressed that the court had failed in its duty to hear the grievances of citizens on an issue so fundamental.
“The court is the right forum to hear a constitutional complaint and not the legislature because it contains people with vested interests,” he said.
Chan said the verdict was regressive after the recent landmark constitutional ruling in the case of M Indira Gandhi, who won her appeal to set aside the conversion certificates of her three minor children.
Lawyers Cyrus Das and Ambiga Sreenevasan represented the Melaka voters, Kulasegaran appeared in person together with A Surenthra Ananth for Su and Amarjeet Singh for the EC.