KUALA LUMPUR, March 16 ― The Election Commission (EC) may be compelled to repeat its proposed redelineation for peninsular Malaysia if it insists on proceeding without Selangor that is challenging the exercise, according to legal experts.
They noted that Selangor’s legal suit against the proposed redelineation was currently ongoing and that the courts may decide that the EC must start the entire exercise anew, putting into jeopardy the time and resources already spent.
“The strategy that the EC has adopted is not without risk, because if the court in the Selangor case decides in favour of Selangor, then the EC will have to redo the entire process from the beginning, because the court may rule that the EC would have got it wrong in terms of process and information,” lawyer Andrew Khoo told Malay Mail Online when contacted.
Last Wednesday, a notice of the EC’s second public display of its proposed review of electoral boundaries for peninsular Malaysia was published in mainstream newspapers, but which excluded Selangor unlike its first public display last September.
Under the Federal Constitution, the redelineation process involves a first public display when the EC holds local inquiries to hear objections from affected state governments, local authorities or voters.
This is followed by a second public display with revised recommendations following the earlier objections and culminating in a report to the prime minister.
Lawyers contacted by Malay Mail Online highlighted the Federal Constitution's Article 113(6), which states the redelineation exercise is to be carried out separately for Sabah, Sarawak and “States of Malaya”.
The last meant that states in peninsular Malaysia and the federal territories as considered a single unit, they argued.
Khoo said the EC appeared to be using the Article’s silence on whether the exercise must be conducted concurrently for all “States of Malaya”, but argued the process cannot proceed and be completed without Selangor.
“What they are trying to do is expedite the process but to me, they can't really do that because ultimately they will have to wait for outcome of Selangor case before they can complete redelineation for Selangor or redo redelineation process for all states of Malaya,” he said.
He highlighted that the Constitution requires the report, which must presented to the prime minister for Parliament's approval, to include all the peninsular states.
Khoo said the prudent move would be to await the disposal of the Selangor case to avoid rendering the redelineation possibly unconstitutional.
Lawyer Surendra Ananth said the EC is effectively trying to bypass the High Court proceedings over the voting regulator's proposed changes to Selangor, but indicated this could ultimately be futile if the Selangor government wins its challenge.
“Therefore, I think the exclusion of Selangor from the 2nd notice is a breach of Article 113(6) and is very disrespectful of the High Court hearing the Selangor challenge.
“If the Selangor challenge is successful, that would mean that the 1st Notice and Proposed Recommendations are unconstitutional.
“This would mean that anything done in furtherance of the same, including the 2nd notice would also be unconstitutional,” he told Malay Mail Online.
Surendra added that the Selangor government can initiate a second court challenge against the EC's second notice for being unconstitutional, and said any voter in peninsular Malaysia can also mount such a challenge.
“Every voter is constitutionally entitled to ensure that the re-delineation process is carried out in accordance with the Constitution. No voter should be made subject to a redelineation process [and the results of the same] which is unconstitutional,” he said.
Lawyer Nizam Bashir said the current differing views appears to revolve around whether the EC can issue a notice of the public display for peninsular Malaysia while omitting Selangor, and subsequently issue a separate notice for Selangor alone.
He noted that a literal reading of the Federal Constitution's Article 113 and Item 4 of the Thirteenth Schedule's Part II would be that there is no provision allowing the issuance of multiple notices for the public display involving peninsular Malaysia.
“Consequently, the EC can only review the 'States of Malaya' collectively and not by doing so in a piecemeal fashion. Put another way, any Item 4 Notices which leaves out Selangor is unconstitutional and unlawful,” he said.
Arguing that the exclusion of Selangor from the EC's notice is “unlawful and unconstitutional”, Nizam said the Selangor government and Selangor voters could apply for a court order to stay the EC from proceeding with its review exercise, as well as challenge in court the EC's decision to omit Selangor in its notice.