KUALA LUMPUR, Aug 13 ― The Election Commission (EC) is unable to immediately implement a Constitutional amendment that allows Malaysians aged 18 to become registered voters as there are other concerns that need to be considered, the High Court heard today.

These include the protection of Malaysian citizens’ data at the National Registration Department and coming up with a mechanism to opt out of being registered as a voter automatically.

The Attorney General’s Chambers (AGC) had stated these explanations on why the EC could not implement the amendment in July 2021 and why it may instead be implemented by September 2022, besides also arguing that a few election-related regulations need to be amended first before Malaysians aged 18 to 20 can become registered voters.

These explanations were made by the AGC during an online hearing through the video-conferencing platform Zoom before judicial commissioner Alexander Siew How Wai in the High Court in Kuching, Sarawak.

Today was the continued hearing by the High Court of five Malaysian youths’ lawsuit or judicial review application to seek the immediate enforcement of a 2019 Constitutional amendment, which had lowered the minimum voting age in Malaysia from the initial 21 to the new age of 18.

The five youths — all aged 18 to 20 — had named the lawsuit’s three respondents as Tan Sri Mahiaddin Md Yasin in his capacity as prime minister, the government of Malaysia, and the Election Commission.

The Constitution (Amendment) Act 2019’s Section 3(a) amends the Federal Constitution’s Article 119(1)(a) to lower the voting age from 21 to 18, while Section 3(b) amends the Federal Constitution’s Article 119(4)(b) to allow for automatic voter registration to replace the current system where Malaysians have to apply to be registered as voters.

But both these two Constitutional amendments — Section 3(a) and 3(b) — have not come into force in Malaysia yet, as they will only come into operation on a date to be appointed by the Yang di-Pertuan Agong via a notification to the public through a government gazette.

In this lawsuit, a key argument by the Malaysian youths is that the lower voting age of 18 years old and the automatic voter registration can be done separately, while the EC and government’s view is that these two matters are part of the same Constitutional amendment that must be done together.

Senior Federal Counsel Shamsul Bolhassan argued that the lower voting age and automatic voter registration cannot be implemented separately, as the Constitution (Amendment) Act 2019 did not provide two different dates for their implementation as would be required under Section 43(b) of the Interpretation Act.

The Malaysian youths’ lawyer Clarice Chan, however, pointed out that Section 54(2) of the Interpretation Act required the EC to implement this Constitutional amendment "with all convenient speed.”

"So this essentially means the EC has to implement it as soon as possible with all due haste,” she said, adding that the EC does not have to wait for an automatic voter registration system and can use other methods to fulfil its responsibility of enabling Malaysians aged 18 to 20 to be registered voters.

Senior federal counsels Azizan Md Arshad (left) and Shamsul Bolhassan represented the prime minister, the Malaysian government and the Election Commission in the lawsuit filed by five Malaysian youths. ― Picture courtesy of Shamsul Bolhassan and Azizan Md Arshad

Senior Federal Counsel Azizan Md Arshad acknowledged that the Constitutional amendment "must be done immediately”, but argued that Article 119(1)(c) of the Federal Constitution requires the registration of voters to be done via the "provisions of any law relating to elections.”

"It clearly stated, whatever you want to do regarding elections or registering of voters, it must be in accordance with any law relating to elections,” he argued, also referring to a similar provision under Article 119(4)(b).

The High Court judge then interjected to ask why the related election regulations have not been amended since the Constitutional amendment was made in July 2019.

"Why haven't these regulations been amended until now? We are in August 2021, already more than two years … If some regulations and law need to be amended to put Section 3 into operation, why haven’t these laws and rules been amended in the last two years and one month, because under Section 54(2) (of the Interpretation Act), it is to act with all convenient speed, why haven’t all these rules and laws been amended so far?” the judge asked.

Azizan then noted that this was an ongoing process, where the EC has to "look at the whole of election laws, and also cannot be done in piecemeal.”

Azizan noted for example that the EC needs to have a mechanism to ensure that only eligible voters are automatically registered once they turn 18, saying that those who are disqualified from voting ― such as those in mental hospitals or convicted for crimes ― would also be automatically registered without such a screening mechanism.

The judge again questioned why such a long time was taken to amend the election-related regulations and laws, as the amendments are "not terribly complex” and could be done in one or two months’ time.

Azizan then explained that the government also has to consider other laws such as the Digital Signature Act.

He argued that the current manual registration system would see Malaysians physically putting down their signature in application forms to the EC to be a registered voter, while an automatic voter registration system may involve other laws such as allowing voters to sign to opt out from automatically becoming registered as a voter.

Asked by the judge why a signature is required if Malaysians will automatically be registered as voters under the new system, Azizan explained: "Because in Malaysia, so far, to become a voter is not compulsory, if you want to vote, you choose. Once we make it compulsory, we also have now to consider whether we have to make a mechanism for them to opt out from being a voter.”

The judge then noted that voting is not compulsory in Malaysia, and that those who are automatically registered as voters could still choose not to vote: "Meaning to say, let’s say the automatic voter registration kicks in, people get registered, but it’s not mandatory for people to go to vote, they can stay at home.”

Azizan explained that it is also not mandatory for Malaysians to be registered as voters, and the current manual registration system enables Malaysians to have the right to remove their name from the electoral roll if they had been unlawfully registered, and that the EC has to consider having a mechanism for Malaysians to opt out in the future from the automatic registration system.

A general view of the National Registration Department in Putrajaya July 20, 2020. — Picture by Hari Anggara

Azizan also said the EC would be blamed for not screening out those who have been convicted or are in mental hospitals during automatic voter registration, while the judge noted that the EC had in 2019 in official statements said there is a taskforce to handle such issues through liaising with the National Registration Department, prisons and mental hospitals and said "that would beg the question how much time is reasonable.”

Azizan then noted that the Covid-19 pandemic which he described as an "act of God” has also had an impact on the EC and other government departments, also pointing out the need to look into whether the Personal Data Protection Act would be breached when using Malaysians" data in the automatic registration of voters once they hit a certain age.

"Because when we talk about registration, we also have to have very strict rules, because we are now applying or asking the data of every citizen of Malaysia to be registered, and these data are all in the custody of the National Registration Department.

"As we put earlier in the submissions and now, it’s not that we don’t want to do it, we can’t do it for the time being, it’s two different things,” Azizan said.

Azizan then listed out provisions such as those in the Election Offences Act, the Election (Registration of Electors) Regulations 2002 and Elections (Conduct of Elections) Regulations that the government said needs to be amended first before the lower voting age can be implemented, and said there is also an ongoing process to look at other Acts as well.

Azizan also explained that the EC’s March 2021 statement had actually mentioned September 2022 as the cut-off date for when the lower voting age of 18 is expected to be enforced, but suggested "maybe it will be done earlier than that.”

Simon Siah (left) and Clarice Chan are the lawyers representing the five Malaysian youths in their lawsuit against the prime minister, the Malaysian government and Election Commission. ― Picture courtesy of Simon Siah and Clarice Chan

In response, the Malaysian youths’ lawyer Clarice Chan cited the Federal Constitution’s Article 4 on the Constitution being the supreme law of Malaysia, pointing out that any election regulations that are in conflict with the Constitutional amendment on lower voting age would simply become invalid.

"My learned friend has spoken at length about various regulations and rules that need to be amended, we say that is irrelevant because the Federal Constitution is clear on this matter, if a law or regulation is inconsistent with the Federal Constitution, it is void to the extent of inconsistency, it doesn’t come into effect.”

Chan also pointed out that the screening process of disqualifying those who are convicted from becoming voters applies to all Malaysians and not just those aged 18 to 20, noting: "There is nothing to say 18- to 20-year-olds cannot be registered because we don’t know whether they can be struck off (from the electoral roll), that is putting the cart before the horse.”

She also argued that voter registration and actually voting are two different things, saying that voting is only an option for the voter during elections and does not affect their Constitutional rights to be registered as a voter.

"The rights for the 18- to 20-year-olds are still there, they are still granted this right under the Constitution to register … They have the right to register, they ought to be registered by the EC, how the EC does it is up to them, but it should be done in all due haste, in light of Article 119,” she argued, referring to the constitutional amendment in 2019 that amended Article 119 to bring the minimum voting age down from 21 to the new age of 18.

After hearing the arguments from both sides, the High Court fixed August 30 to deliver its decision on the judicial review filed by the five Malaysian youths.

The five Malaysian youths — who are also part of the Undi18 movement that successfully advocated for the lower voting age and include four Sarawak-born youths — who filed this lawsuit are Ivan Alexander Ong, Viviyen Desi Geoge, Tiffany Wee Ke Ying, Chang Swee Ern and Sharifah Maheerah Syed Haizir. Their right to vote is directly affected as they are aged 18 to 20.

They had filed the lawsuit on May 4, and had obtained leave for judicial review on May 28, which led to the hearing on July 27 and today of the judicial review application on its merits.

Lawyer Simon Siah also represented the five youths in the hearing today.

Separately, 18 Malaysian youths also aged 18 to 20 and also part of the Undi18 movement had on April 2 filed a similar lawsuit in the High Court in Kuala Lumpur, and had on June 17 won leave for judicial review. Their judicial review hearing is currently scheduled to take place on August 23.