On the 30th of March 2017, we filed a Judicial Review against the Election Commision for an order of Certiorari to quash the Election Commission’s 2nd Proposed Recommendations for the delimitation exercise 2017.
This follows after the 1st Proposed Recommendations by the Election Commission on 15.09.2016 and after objections raised by us, a Local Enquiry was held 01.11.2016 at Aman Jaya Convention Centre wherein oral representations were made to support our objections but subsequently no reply was given. Suddenly on 08.03.2017 the 2nd Notice of the Proposed Recommendations were advertised in daily newspapers. M Kula Segaran wrote in to the Election Commission but no reasons were given in that only they have notified on the 2nd Local Enquiry.
Thus, this application and inter alia, the reasons for the application are as below:
1. Malapportionment
The number of voters within each constituency in Perak is not equal pursuant to Section 2(c), 13th Schedule, Federal Constitution. The voters will not have equal voting powers as the Parliamentary Constituency with the lowest number of voters is 28,078 whereas the Constituency with the highest number of voters is 96,437. This disparity of 3.2: 1 shows clear disparity in the electorate power.
Following the equal apportionment principle in section 2(c), 13th Schedule, Federal Constitution, each constituency should have approximately 58,614 electors. However, the current delimitation exercise worsens the electorate disparity.
2. Disruption of Local Ties
The Proposed Recommendations would disrupt the maintenance of local ties. Section 2(d), 13th Schedule, Federal Constitution requires that any proposed recommendation preserve local ties and amendments be made to areas where local ties were severed in the earlier re-delineation exercises.
3. Article 8, Federal Constitution
The Proposed Recommendations has the following effect on the ethnic composition of the Constituencies of Ipoh Barat and Ipoh Timur. Most extraordinarily, the impact of the 2016 Proposed Recommendations has the biggest impact on the ethnic composition of N26 Tebing Tinggi state seat whereby the percentage of Malay voters is estimated to increase from 20.5% in General Elections (“GE”) 2013 to 56.8%. The percentage of the Chinese voters is estimated to decrease from 73.1% in GE 2013 to 34.3%. The percentage of Indian voters is estimated to increase from 5.9% in GE 2013 to 8.7%.
The matters on unequal voting power as particularized in Part III(C)(i) above also amount to a violation of the guarantee of equality and non-discrimination under Article 8(1) and (2), Federal Constitution.
4. Procedural Impropriety
The Election Commission is given wide powers under section 8, Commissions of Enquiry Act 1950 (“CEA”) to conduct local enquiries. This necessarily characterizes the Local Enquiries as, at the very minimum, quasi-judicial in nature. This would mean that the Applicants (Ipoh Barat & Ipoh Timor) are entitled to their right to a fair hearing and all necessary rights under the rules of natural justice, which are codified under Articles 5(1) and 8(1), Federal Constitution.
The Election Commission has failed to provide any reasons for its decision to not incorporate the objections made during the Local Enquiries. As noted above, the Proposed Recommendations remain in contravention of Article 8 and the 13th Schedule of the Federal Constitution.
5. Failure to Provide Reasons
The Election Commision has failed to provide reasons for its decision not to incorporate the objections made during the Local Enquiries. As noted above, the Proposed Recommendations remain in contravention of Article 8 and the 13th Schedule of the Federal Constitution. The failure to provide reasons has, amongst others, the following implications:
a. The Applicants right to due process and fairness under Articles 5 and/or 8, Federal Constitution have been violated;
b. The subject matter of the Local Enquiries, the 1st Proposed Recommendations, concern the Applicants’ fundamental rights under Articles 8, 10(1)(a) and 119(1), Federal Constitution. The Applicants have a legitimate expectation that reasons be given when their representations, which go to compliance with constitutional provisions, have not been taken into account in issuing the Proposed Recommendations;
c. This duty is amplified by the fact that the Election Commission is a body that must enjoy public confidence.
We have thus also applied for a stay of the 2nd local enquiry as there is a probability that the matter will become academic once the Election Commission submits its report to the Prime Minister under section 8, 13th Schedule, Federal Constitution which will then be tabled in Parliament.
This matter has been filed by Kula & Associates and will be assisted by a team of lawyers compromising M. Kula Segaran, Surendra Ananth (of Malik Imtiaz Sarwar-KL) and Thomas Su.
The Election Commission’s conduct in recent years suggests three possibilities:
- It is doing what it has been specifically instructed by the Government to do;
- It chooses to do what it thinks will help the Government; and
- It independently shares the Government’s view of what is in the national interest.