KUALA LUMPUR, March 20 ― The High Court today threw out a legal challenge against the registration of 949 voters at an allegedly unfinished army camp in Segamat, as the Election Commission (EC) had already gazetted their registration.
Lawyer Michelle Ng, who represented 48 Segamat voters who had filed the lawsuit, said the High Court allowed the EC's preliminary objection against the lawsuit.
“The court today dismissed the application for leave with no order as to costs.
“The court agreed with the Attorney-General's Chambers that Section 9A ― the ouster clause in the Elections Act applies, and that given that the names had been gazetted, the matter is now non-justiciable,” she told reporters after High Court judge Datuk Kamaludin Md Said delivered the decision in chambers.
Under Section 9A of the Elections Act, an electoral roll — which has been certified or recertified and which had the notice of such certification or recertification gazetted — will be considered “final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by, any court”.
Ng said she would have to seek her clients' instructions on whether to appeal today's decision.
Senior federal counsel Muzila Mohamed Arsad represented the EC and the others sued.
On February 26, the 48 Segamat voters had filed an application for leave for judicial review to stop the registration of 949 voters using the allegedly uncompleted Segamat army camp's address, naming the EC; the Johor electoral registrar Shafie Taib; Segamat adjudicating officer Miswan Yunus as respondents.
The 48 voters were seeking a court order to cancel the EC’s entry or retaining of the 949 voters in the supplementary electoral roll for the third quarter of 2017; and a declaration that the entry of such names is unconstitutional.
They were also seeking the suspension of the certification or gazetting of the 949 voters in the supplementary electoral roll until the end of the lawsuit; and the suspension of the EC’s further actions to give effect to or to use the 949 names until the lawsuit is resolved.
The 949 voters comprised army personnel and their spouses.
On March 6, the EC had through the Attorney-General's Chambers mounted a preliminary objection to this lawsuit, saying it had on February 21 already gazetted the registration of the 949 voters in the supplementary electoral roll.
February 21 was also the day the Court of Appeal had refused to allow the 48 voters from continuing a separate and similar lawsuit challenging the 949 voters’ registration.
The AGC had previously argued that Section 9A — which functions as an “ouster clause” to exclude the courts’ powers — should apply and the High Court should not review the EC’s actions, as the 949 voters had already been gazetted.
Muzila had, on March 8, told reporters that the AGC had cited the case of Muhammad Sanusi Md Nor v Mohd Tajuddin Abdullah and others, where the Federal Court had ruled that the electoral roll after gazetting shall be deemed final and cannot be questioned in courts.
Muzila said the AGC had also cited a recent case involving Melaka voters to say that Section 9A was still relevant, noting that the Court of Appeal had in that case referred to the Sanusi decision and that a bid to proceed with an appeal at the Federal Court was not successful.
Ng had previously argued that the Section 9A ouster clause does not apply, as the EC and the two officers sued had gone beyond their jurisdiction by failing to apply the Federal Constitution's Article 119 requirement for voters to be a resident of the constituency they vote in when they apply to be registered there.
Ng had cited the M. Indira Gandhi case, where the Federal Court decided that the ouster clause does not apply if a court challenge deals with whether an administrative body had exceeded its jurisdiction.
The 48 voters' lawsuit had, among other things, cited November 2017 photos that showed a notice board stating that the Segamat camp would be due for completion on April 16, 2018.