Penang government fails in bid to continue redelineation lawsuit against EC

Lawyer Leong Cheok Keng represented the Penang state government in its lawsuit against the Election Commission over the latter's redelineation exercise. — Picture by Zuraneeza Zulkifli.
Lawyer Leong Cheok Keng represented the Penang state government in its lawsuit against the Election Commission over the latter's redelineation exercise. — Picture by Zuraneeza Zulkifli.

PUTRAJAYA, Feb 21 — The Penang state government today suffered another setback when it failed again to obtain the court’s nod to proceed with its legal challenge against the Election Commission’s redelineation exercise.

Court of Appeal judge Tan Sri Idrus Harun said the panel that he chaired unanimously decided to dismiss the Penang state government’s bid, ruling that the High Court judge did not make an error in disallowing the Penang government from continuing its lawsuit.

“We find no merits in this appeal... The order of the High Court is affirmed. We make no order as to costs,” he said, but did not elaborate on the grounds of the decision.

The other judges on the three-man panel are Datuk Kamardin Hashim and Datuk Zaleha Yusof.

Today was the hearing of the Penang state government’s appeal against the Penang High Court’s decision last November to deny it leave for its lawsuit to be heard.

On June 7 last year, the Penang state government had filed for judicial review against the EC over the latter’s proposals for the redrawing of voting boundaries.

Earlier today, the Attorney-General’s Chambers (AGC) civil division head Datuk Amarjeet Singh argued that the EC’s redelineation proposals were merely “half-baked recommendations” and not the “end product yet”, saying that these did not have legal effect and could not be subject to judicial review.

Amarjeet disputed the Penang government’s contention that the EC should not have issued its second notice with revised redelineation recommendations for Peninsular Malaysia without including Selangor, arguing that the EC could carry out review of voting boundaries for each state in Peninsular Malaysia in 11 units of review instead of one.

“It is for the EC to carry out its function as it thinks fit,” he said.

The Penang state government’s lawyer Leong Cheok Keng had earlier noted the argument that his client’s lawsuit is premature, but argued that the Penang government would not be able to go to the courts once the EC’s redelineation proposals reach Parliament.

“However, it is our submission that if we wait for the proposed recommendations to be tabled in Parliament, it would be academic under the doctrine of separation of powers. By that time, the court would not be able to interfere with Parliament which is one of the three bodies of government and the appellant would be left with no remedy,” Leong told the Court of Appeal.

Leong had also highlighted that the Penang government’s lawsuit was filed with the “blessings” of the state legal adviser which he said was under the Attorney-General’s purview, arguing that the Attorney-General should therefore not object to the court granting leave for the Penang government’s case to be heard.

“Unfortunately the Attorney-General’s Chambers are here to contest this leave application, which we submit is inappropriate. There is merit in this case and it must be there’s public interest to have this filed, otherwise the state legal adviser would have advised not to proceed with this filing,” he said, also arguing that there would be “conflict of interest” if the AGC were to object.

Amarjeet had responded that a state legal adviser is not a member of the AGC, but an AGC officer seconded to the state and expressly stated in state constitution to be part of the state executive council.

“The Attorney-General has got no direction over the states and what the states do,” Amarjeet said, arguing that the AGC has always defended in the EC in lawsuits and that there was no conflict of interest.

Lawyer Chan Kok Keong, who also represented the Penang government, argued that his client’s case was “justiciable” or a matter which the courts can hear.

Chan said the Penang government had locus standi or legal standing to file this lawsuit, also arguing that this was a case of public interest that should be heard by the court.

“When the state government sues, it cannot be that there’s no public interest involved, because the state government represents the public,” he told the Court of Appeal.

When contacted later regarding the Penang government’s next step, Leong told Malay Mail: “We are already seeking the Penang Government’s instructions. It is likely that they will instruct us to apply for leave to appeal at the Federal Court.”

The EC started its redelineation exercise of peninsular Malaysia in September 2016, and has a two-year timeframe under the Federal Constitution to complete it.

The 14th general election’s date has yet to be announced, but it must be conducted by August 2018 if one is not called ahead of Parliament’s automatic dissolution in June.