PUTRAJAYA, Dec 14 — The Selangor government failed to get a judge to recuse himself from its lawsuit against the Election Commission (EC) today, but obtained an adjournment of the hearing on the agency’s bid to proceed with local enquiries in the state.
Tan Sri Idrus Harun, who chaired the Court of Appeal panel hearing the matter this morning, dismissed the Selangor government’s application today for his recusal over an alleged “real danger of bias”.
“After considering the application, I find no merits to this application,” he said today without elaborating.
Idrus then allowed the state government’s application to postpone the hearing initially fixed for today, to give it time to respond to an EC notice that was only served to the state government two days ago.
“So as regards the second application, we allow an adjournment to enable the respondent to file an affidavit in reply. The case is therefore adjourned to December 18,” he said.
The other two judges on the Court of Appeal panel today are Datuk Yaacob Md Sam and Datuk Rhodzariah Bujang.
The court was initially set to hear the EC’s application to set aside the Kuala Lumpur High Court’s December 7 stay order, which froze proceedings of the commission’s local enquiries in Selangor until the end of the state government’s lawsuit.
The High Court order effectively paused the EC’s entire redelineation exercise in peninsular Malaysia, as Selangor is the only state where the EC has not held local enquiries to hear objections on its redelineation proposal.
Earlier today, Datuk Ambiga Sreenevasan argued that Idrus should be recused as he had sat on panels that had decided on three court challenges against the EC’s redelineation exercise: the Sarawak case involving See Chee How, a case involving PKR’s Lembah Pantai MP Nurul Izzah Anwar, and another involving Chan Tsu Chong and six other Melaka voters.
Ambiga highlighted a paragraph in the Court of Appeal’s November 28 written judgment for the Melaka case, which said: “The [EC] should not be hampered in any manner to carry out its constitutional function because of the intervening act to stay the exercise in the state of Selangor. The [EC] is constitutionally bound to proceed with all the legal enquiries in order to discharge its constitutional duty.”
The Court of Appeal’s unanimous judgment in the Melaka voters’ case was written by Justice Hasnah Mohammed Hashim, another judge who sat in the same panel.
Ambiga also noted that the basis of the commission’s application to set aside the stay order was that the “EC should not be hampered in carrying out its constitutional functions”, similar to the judgment.
Senior federal counsel Datuk Amarjeet Singh Serjit Singh, who represented the EC, disagreed.
“The mere fact of sitting in another case does not give rise to a real danger of bias.
“So it’s now become fashionable in our courts to merely recuse a judge before he has sat and decided on a similar issue,” he said, arguing there were no grounds to recuse Idrus.
He added that the matter involving the stay order in the Selangor case was fundamentally different from the others that Idrus had presided over.
“This is not a case like the Sarawak case or Melaka case or Nurul Izzah case. There, the judicial review was heard, here we are not hearing judicial review. Here we are hearing an application to set aside stay order by the High Court.”
In the EC’s application filed last week, it claimed the High Court’s stay order had the effect of an injunction, which may not be applied against the EC in the execution of its constitutional functions.
The EC further claimed that the order contradicted the constitutional provisions that direct the EC to hold local enquiries after receiving objections to its redelineation proposals, besides also hampering the execution of its constitutional duties.
The EC also claimed that the stay order nullified and did not consider the rights of voters in Selangor and other states who had filed objections, and that the stay affected the EC that must complete its redelineation exercise before September 14, 2018.
The 14th general election must be held by next August, but may be called earlier.