KUALA LUMPUR, Oct 24 — The Election Commission’s (EC) claim that it did not have some voters’ addresses and its failure to restore others lost during a 2002 data migration were “incredible”, a court was told today.
Datuk Ambiga Sreenevasan, a lawyer representing the Selangor government, argued that the EC’s redelineation exercise would not be valid without the addresses of 136,272 voters in Selangor that it said were deleted more than a decade prior.
“The EC claims they destroyed addresses in 2002. That really begs the question, what have they done in 2002 to 2017? Why have they done nothing to update the roll and obtain addresses?” she told the court.
“The main question for the court is: can you delimit without addresses and should you be allowed to delimit without addresses? The best practice, we would say, you must have addresses.
“It’s quite incredible to hear that the EC does not have the addresses of voters. That, to me, is incredible,” she added.Ambiga went on to dispute the EC’s argument that it could correctly assign voters to their voting constituencies without their addresses and just by using locality codes.
She also challenged the EC’s insistence that localities were permanent unless a voter applies for change of address and its use as a surrogate for a physical address.
Ambiga also pointed to the ambiguous nature of a “locality”, noting that it is not expressly mentioned in the Elections Act or defined in the Elections (Registration of Electors) Regulations 2002.
“The locality is what the EC says it is, it can be anything. That is exactly our problem, there are no boundaries, no maps that show where they are. We don’t have the benefit of any of the information,” she said, adding that localities are not identified in any publicly available information.
The EC also admitted to making errors in assigning 63 of the 136,272 voters, she said when noting that the voting regulator had gone to the National Registration Department (NRD) to track down the addresses of this group who applied for a change of their voting constituencies.
This demonstrated that they had been made to vote in the wrong constituencies during Election 2008 and that the EC could, if it so desired, obtain the addresses from the NRD, she said.
“What is the difficulty in going to [NRD] and updating addresses? It is unbelievable that the Election Commission fails to take the simplest of steps to update the electoral roll. It shows the EC can trace addresses and they have to do it,” she said of the voter addresses allegedly lost in the EC’s 2002 shift from a manual to digital system.
Ambiga cited the testimony of a voter who said she asked the EC to reassign her to the correct voting constituency, as her husband and son living in the same house as her were assigned to a different area.
“We would argue that such errors would be minimised or totally avoided if the addresses were there. You must also have addresses at all times so you know you are placing people in the right constituencies,” she argued.
Ambiga cast doubt on the EC’s assertion that the localities never change, noting that the EC’s claim of not having the locality codes for the last two redelineation exercises means it has “no historical data of locality codes”.
“If you have no historical data of locality codes… how can you say with such certainty that they have never changed? They expect the court to believe them without producing any evidence whatsoever. Unfortunately, the evidence that is there — even from their documents — goes against what they are saying,” she argued.
The Selangor government only wanted the EC to “redo” its redelineation exercise with the addresses of the 136,272 Selangor voters restored, instead of using a “defective” and incomplete electoral roll, she said.
Derek Fernandez, another lawyer for the Selangor government, argued that the redelineation exercise by the EC must be subject to judicial review and that it would be absurd for the EC to say it was not accountable to the courts.
“So who is the EC accountable to? A constitutional body is not accountable to Parliament per se because it is created by the Constitution. They are accountable to the Constitution which is the prime law of the land and therefore must be accountable to the courts which interprets the Constitution,” he said of the EC which is created under the Federal Constitution and bound to comply with constitutional provisions in carrying out redelineation exercises.
Without judicial oversight when the EC allegedly breaches the Constitution in redelineation exercises, he argued that it could give rise to a scenario where there could be “no real objection” in the election process as those wielding the majority in Parliament would be free to determine voting boundaries.
Datuk Cyrus Das also argued today on behalf of the Selangor government on two of its four grounds, noting that the EC had failed to provide any evidence to deny alleged malapportionment and gerrymandering such as the shifting of voters based on their previous voting patterns and their ethnicity.
He cited specific examples that the EC had failed to explain, such as the proposed conversion of Selangor’s multiracial constituencies like the federal seats of Kapar and Klang into Malay-majority and Chinese-majority seats and the state seats of Seri Andalas and Sg Pinang into super-Malay and super-Chinese majority seats.
High Court judge Azizul Azmi Adnan today fixed December 7 to deliver his decision on the Selangor government’s bid to have the EC’s redelineation exercise declared unconstitutional and invalid.
The lawsuit was filed last October 19 against the EC, the EC chairman Datuk Seri Mohd Hashim Abdullah and EC secretary Datuk Abdul Ghani Salleh over the redelineation exercise — which includes the renaming of constituencies and the transferring of voters through the redrawing of voting boundaries.