Election Commission and the courts

ON March 2 the Court of Appeal dismissed an application by the Selangor government to stay all proceedings of the Election Commission (EC) until its appeal on the constitutionality of the re-delineation exercise was heard in some three weeks' time.

The Selangor government had filed for judicial review of the EC's redrawing of boundaries exercise because it said:
» The EC had not followed the principles on which this could be done under the (Federal) Constitution;
» In carrying out the exercise, the EC had not complied with the mandatory procedure for the process as prescribed by the constitution;
» It had used a flawed electoral roll; and
» There were names of voters on the roll with no corresponding addresses.

All rather serious allegations which could render the EC's exercise fatally unconstitutional.

The High Court dismissed the judicial review. Hence the appeal to the Court of Appeal.

Pending the hearing of this appeal (scheduled for March 23), the Selangor government applied to the court to stay all proceedings of the EC. Namely, not to continue with the inquiries; nor make any recommendations to the prime minister who then forwards them to Parliament.

But the Court of Appeal dismissed this stay application.

It ruled that:
» by allowing the stay it would interfere with the entire re-delineation process which was carried out under the constitution;
» the Dewan Rakyat would be given the trust to accept and make a decision on the report by the EC to Parliament; and
» the Dewan Rakyat is the ultimate authority to decide on the matter relating to the delineation exercise.

Now, if the Appeals Court in the pending appeal rules in favour of the Selangor Government and against the EC, the recommendations sent to Parliament (via the PM) would be flawed. And provide an entirely unconstitutional basis for our parliamentarians to decide on the proposals of the EC for the redrawn boundaries.

Additionally, it could cause a needless tension between the court's decision, the executive (if it adopts and tables the recommendations) and the propriety of the basis of the debate and the final outcome of the Dewan Rakyat.

The Appeals Court's grounds for the refusal of the stay seems to bestow the EC with sacrosanct powers with which the courts cannot interfere.

This, with respect, ignores the very recent crystal clear pronouncements from our apex Federal Court that it is the role of the judiciary in our constitutional scheme to review any action of any body or organ of governance – to ascertain whether or not it has exceeded its powers as prescribed by the constitution or any law. This includes a judicial review of the acts of the executive, ministers and Parliament itself. As well as other bodies such as the EC, and all other organs and institutions.

Undoubtedly, the EC has a constitutional role. But this does not preclude the court from examining whether it has adhered to its mandate and procedure under the law and the constitution. In short that it has acted constitutionally.

And we are not alone in this. Courts in far-flung corners of the world in countries subscribing to the Rule of Law, all reserve the right to rule as unconstitutional or unlawful the acts of the Election Commission.

In India the Supreme Court ruled as long ago as 1978 that its "… Election Commission will have to conform to the existing laws and rules in exercising its powers and performing its manifold duties for the conduct of free and fair elections:" Mohinder Singh Gill v Chief Election Commissioner.

The Eastern Caribbean Court of Appeal restrained the Boundaries Commission from submitting a report (similar provisions are in our constitution) to the president "until the final determination of this matter". Constituency Boundaries Commission v Baron (2001).

Recently in 2015 the Privy Council, in an appeal from the tiny West Indies island of Saint Christopher and Nevis, prohibited its governor-general from making a proclamation altering the constituency boundaries until court proceedings of a constitutional challenge were disposed of: Brantley and others v Constituency Boundaries Commission.

One final point. It is crucial to preserve and enhance public perception that the judiciary will always maintain an even balance when there is a contest between the citizenry and the executive or other institutions of governance such as the EC. As a one-time lord president was at pains to point out: "We are not unmindful of our grave responsibility to be between the executive and citizens. We would like to reiterate that we do not abdicate our function and shy away from our responsibilities."

If such a message could be transmitted to the ordinary man or woman in decisions involving the public interest, it would do heaps to engender and enhance confidence in the integrity of the judiciary.

Together with others, the writer was counsel for the Selangor government in this case. Comments: letters@thesundaily.com