Bersih: Court decision on Segamat army voters a blow to democracy

Bersih’s Shahrul Aman Mohd Saari regrets that all the democratic checks available, including the courts, have allowed the misuse of Election Commission powers.

KUALA LUMPUR: Bersih 2.0 is unhappy with the decision of the Kuala Lumpur High Court to dismiss the leave application for judicial review by 48 voters from Segamat against the inclusion of 949 army voters and their spouses in the supplementary electoral roll.

Bersih acting chairman Shahrul Aman Mohd Saari regretted that all the democratic checks available, including the courts, have allowed the misuse of Election Commission (EC) powers.

It was clear, he said in a statement, that the transfer of the 949 voters was an attempt to” derail clean and fair elections in order to keep the Barisan Nasional in power”.

Shahrul Aman said: “This case was filed after the same case was dismissed in February on technical grounds that the case was filed prematurely and at the time of filing, had not exhausted the objection appeal process at the EC level. However, upon re-filing the case at the KL High Court, the case was dismissed because the subject matter – the issue of transferring the 949 army voters and their spouses under unconventional methods – had already been gazetted.”

He noted that the judicial review application by the 48 voters was re-filed immediately in line with regulations after the case was dismissed in February, during which time the EC appeal process had failed.

“The EC’s move to gazette the 949 voters on the very day the Court of Appeal lifted the stay order clearly shows that the EC acted in extreme bad faith by seeking to close all avenues to justice for the 48 voters and pushing through the transfer of the 949 army officers. Using Section 9A as a blanket of impunity, the EC has decided to cover its tracks and effectively shut down all avenues of justice for the 48 voters.”

Urging everyone to speak up and hold the EC and the courts accountable for “a misapplication of justice”, Shahrul Aman said the role of the courts in any democratic system was to deliver justice where access had been denied through official channels. That is why it is important that the judiciary remains independent from political and governmental influence.

He said the KL High Court should not have given Section 9A of the Elections Act 1958 more weight than Article 119 of the Federal Constitution which states that a voter must reside in the constituency in order to cast their vote there during the election.

Section 9A, an amendment made in 2002, states that once an electoral roll has been certified or re-certified by way of publication in the federal gazette, it is final and binding and, therefore, cannot be challenged in any court.

Shahrul Aman said Section 9A by itself was undemocratic and unconstitutional as the separation of powers clearly distinguished the judiciary as a separate, independent and supreme branch of governance, aside from Parliament and the government.

He urged MPs, courts and other democratic bodies to work to repeal Section 9A to allow challenges to the electoral roll in court, especially in correcting the many discrepancies on the electoral roll.

He said the judge should also have have considered all the factors and whether the process which had led to the gazetting of the 949 army officers and their spouses was conducted properly, fairly and in the interest of the voters as well as clean and fair elections.

Saying this court decision would set a precedent which would allow for “electoral fraud and the erosion of the rights and voice of the voter to meaningfully determine the future of Malaysia in all coming elections”, he called on Malaysians to highlight, challenge, protest and stand against any effort to “silence the people and diminish the right of the voter”.