KUALA LUMPUR, May 14 — The Election Commission (EC) cannot push ahead and seek Parliament’s nod for its redelineation exercise of Peninsular Malaysia without hearing out objections from Selangor and Melaka, lawyers have said.
But the voting regulator will still be able to hold local inquiries as part of the redelineation exercise in other states in Peninsular Malaysia, where the EC is not currently barred by the courts from doing so.
Lawyer Andrew Khoo noted that the two existing court orders — which requires the EC to defer local inquiries in Selangor and Melaka until the end of lawsuits challenging the allegedly unconstitutional redelineation proposals — would only hold up the entire redelineation process.
“I would say that second proposal and the public inquiries in relation to the second proposal in all other states can probably still go ahead.
“But the overall proposal for the redelineation exercise for the ‘States of Malaya’ as a whole, the recommendations to be put to the PM at the end of the exercise, that cannot go on.
“That has to go on as ‘States of Malaya’, if Selangor and Melaka is held up, it cannot proceed. That cannot go on without inquiries having been completed in Selangor and Melaka,” he told Malay Mail Online when contacted yesterday.
Under the Federal Constitution’s Article 113(6), the redelineation exercise which can include review of electoral boundaries is to be carried out separately for the three units or areas of Sabah; Sarawak; and the States of Malaya. The States of Malaya, which covers Peninsular Malaysia, includes the federal territories of Labuan, Kuala Lumpur and Putrajaya.
While he felt it would be against the spirit of the Federal Constitution’s provisions on the redelineation process for the EC to push ahead with holding local inquiries in the other states despite the court freeze for Selangor and Melaka, Khoo believes there is sufficient “lack of clarity” in the provisions that would allow the EC to do so.
Khoo had previously said the Federal Constitution is not clear on whether the redelineation exercise must be conducted concurrently for all states categorised under “States of Malaya”.
But if the EC were to try to bypass Selangor and Melaka and go ahead with submitting to the prime minister its final proposal on the redelineation exercise for Peninsular Malaysia, it would be “clearly unconstitutional” as the Constitution does not allow the EC to “pick and choose” the states, he said.
“If the EC chooses to push ahead, then yes, it will have to be challenged in court for being unconstitutional. The EC should know that if it does that, it is acting ultra vires the Constitution,” he said.
Lawyer Surendra Ananth said the EC is currently in its second stage of the redelineation process where they are still conducting local inquiries, but said it has to hold off the final step of passing a report on its final recommendations to the prime minister.
“They can proceed with inquiry in other states, but what they can’t do is submit a report to the PM, because when they submit a report, it’s for one unit of review. The Constitution clearly envisions one unit for all states in Malaya,” he said, pointing to Melaka’s and Selangor’s suspended local inquiries.
But if the EC was to push ahead and pass the report to the Prime Minister for tabling in Parliament, Surendra argued that the order for redelineation that is approved by Parliament and subsequently gazetted can still be challenged in court.
“Although there is no precedent on it, no one has challenged the gazetted order, I think it can still be challenged. There is no law that precludes the court from questioning it.
“I still think you can challenge the final order that is made on the grounds that it contravenes the Constitution, particularly Article 113(6) and Section 2 of the 13th Schedule,” he said, later adding that “any exercise of power can be challenged in court”.
Derek Fernandez, who also represents the Selangor government in a lawsuit against the redelineation, stressed that the EC is only “legally authorised” to carry out a review of the voting boundaries for the “States of Malaya collectively”.
“The current exercise is the review of the boundaries for states of Malaya collectively. That means the EC currently is conducting a review of election boundaries of states of Malaya collectively, therefore it cannot conduct a review leaving out certain states.
“This means the EC should not proceed to conclude or carry on with stage two of their review without all states being completed,” he said.
On March 8, the EC issued and gazetted its second round of proposals for the review of electoral boundaries, but excluded Selangor from these recommendations amid the Selangor state government’s ongoing court challenge of its first round of proposals.
On April 4, seven Melaka voters filed a lawsuit for a declaration that the EC’s second round of proposal was unconstitutional and invalid for five reasons, including the omission of Selangor and the use of an allegedly “defective” electoral roll which lacked the addresses of 44,190 Melaka voters. They successfully obtained on Friday a stay order stopping local inquiries from going on in Melaka.
When contacted, EC chairman Datuk Mohd Hashim Abdullah yesterday told Malay Mail Online that the commission can and will proceed with holding local inquiries in other states — besides Selangor and Melaka — as there were no court orders against it.