In Undi18 lawsuit, Ambiga says EC must lower voting age to 18 by ‘promised’ July 2021 instead of 'backtracking' for no good reason

KUALA LUMPUR, May 24 — The Election Commission (EC) must ensure that Parliament’s decision to lower the voting age of Malaysians to 18 takes legal effect by July 2021 as promised in September 2019, instead of “backtracking” on the assurance to Malaysian youths aged 18 to 20 without a good reason, a lawyer told the High Court today.

Today was the hearing of a bid by 18 Malaysian youths aged 18 to 20 who are seeking for leave for the High Court to hear their lawsuit against the prime minister, the government of Malaysia and the EC, as well as the hearing of the Attorney General’s Chambers to have the lawsuit dismissed on a preliminary objection before it can be heard in full by the High Court.

The Malaysian youths were seeking in the lawsuit to be able to enforce their right to vote by July 2021 as promised since almost two years ago, instead of only after September 2022 as the EC abruptly announced in late March 2021.

Datuk Ambiga Sreenevasan, one of the lawyers representing the 18 Malaysian youths, noted that all 211 MPs present in the Dewan Rakyat on July 16, 2019 had unanimously voted in favour of amending the Federal Constitution to reduce the minimum voting age in Malaysia from 21 to 18.

“All those present voted for it, you can’t get a clearer message from Parliament that this must happen, and no excuses should be tolerated as to why this should be delayed,” she told the High Court during the hearing.

Following the Dewan Rakyat and Dewan Negara voting to approve the lowering of the voting age, the Constitution (Amendment) Act 2019 was gazetted as law on September 10, 2019 to make several constitutional amendments including allowing youths aged 18 to 20 to vote.

In the Constitution (Amendment) Act 2019, 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.

The backtracking and keeping the promise

Ambiga today went through the chronology of what the EC and the Malaysian government had said on when the lowering of the voting age could come into force, including the EC’s September 3, 2019 statement that it would be enforceable 18 to 24 months’ later, and the then law minister Datuk Liew Vui Keong saying in October 2019 that it is expected to be done latest by July 2021.

Ambiga also cited multiple other instances in 2019 and 2020 when the EC and government officials had repeated that the lowering of the voting age is expected to take effect by July 2021, and that the EC deputy chief Azmi Sharom was on March 10, 2021 reported saying that all EC systems are “on track” to lower the voting age to 18 and to implement automatic voting registration.

Ambiga noted that the Dewan Negara president Tan Sri Rais Yatim was however reported saying the next day on March 11, 2021 that the country was not ready for the lower voting age of 18, and that this was then followed with an “about-turn” by the EC shortly on March 25, 2021 where the EC’s new chief Datuk Abdul Ghani Salleh said it is expected to be done after September 2022.

“So very strange, because this comes two weeks later, so this is March 25. The deputy commissioner had issued a statement on March 10 to say we are on track, no issues in getting it done, contradictory position. Surprise, surprise, it came after the senate (Dewan Negara) said we are not ready.

“It is what I would call a backtracking, without a doubt, for no good reason,” she said.

In arguing the Malaysian youths’ legitimate expectation to be able to register as voters by the age of 18 to 20 instead of having to wait for when they turn 21, Ambiga said they had a legitimate expectation that this would be implemented soon.

Ambiga highlighted the importance of enforcing the lower voting age as the prime minister has said that elections could be held once the Covid-19 situation is under control and the nationwide Emergency is lifted, saying: “What you are doing is disenfranchising millions of youth, after giving them the clear signal and impression that they would be able to exercise their right to vote.”

Ambiga argued that the EC could not defer its promised date of July 2021 as the implementation date of the lower voting age, as its role is merely to carry out Parliament’s decision to allow Malaysians aged 18 to 20 to vote.

“One of the citizens’ important rights is the right to vote, the right to choose their government, and worse than that, you are offending the rule of law, because what you are doing is going completely against what Parliament wanted.

“Constitutional amendments are not like amendments of any legislation. This is the Constitution you are talking about, and you cannot come to court and you cannot say we changed our mind. Who are you, you are functionaries, Parliament has decided, functionaries — EC cannot say we change our mind, we gonna wait.

“Parliament has decreed, you give a date of promise, you have to stick with it. This is not any legislation, this is a fundamental right that you are now delaying unnecessarily,” she argued.

In arguing the AGC’s preliminary objection against the 18 Malaysian youths’ application for leave for the lawsuit, senior federal counsel Shamsul Bolhassan among other things said that the government has no issue with reducing the voting age to 18, but that the issue lies in the “implementation”.

He highlighted the need to first amend election regulations to put in place mechanisms to enable Malaysians to be automatically registered as voters once they turn 18.

“If we don’t amend all these regulations, how are we going to amend? Firstly the automatic voter registration (AVR), once they reach the age of 18, they are automatically registered as voters.

“So if we are to implement the 18 as well as the AVR, there will be a problem as to how to implement it, because the process of registration is no longer there. How are we going to register that if we don’t have the mechanism as to how to go about it,” he said, referring to the constitutional amendment that would enable manual voter registration to be replaced by automatic voter registration as well as the constitutional amendment to lower the voting age.

At one point, the judge questioned why the necessary amendments to the election-related laws and regulations were not done over the past two years to enable mechanisms to be introduced for the constitutional amendments to take effect.

“But as of now, unless those things have been completed, then we could do it, not problem,” Shamsul replied, but suggested again that the constitutional amendments could not be implemented without such changes to election laws.

Senior federal counsel Azizan Md Arshad meanwhile confirmed to the judge that the AGC’s position is that the automatic voter registration and the lowering of the voting age to 18 must be done together.

Earlier, Ambiga argued that the AGC’s view that other election-related laws and regulations need to be amended before the constitutional amendment lowering the minimum voting age to 18 could come into operation was “untenable”.

“You cannot say that a constitutional amendment that was upheld unanimously must wait until the legislation is passed and regulations are passed, this is an untenable proposition. It should be the other way around. The Constitution comes first, the Constitution cannot bow to your parliamentary amendments and your regulations, it’s a ridiculous position to hold,” she said, further suggesting that the amendments to the election-linked laws and regulations could be done easily and did not make it impossible to implement the lower voting age.

As for the AGC’s arguments that the enforcement of the constitutional amendment for the lower voting age needed to wait for automatic voter registration to be implemented as both have to be done together, Ambiga said that these are actually separate matters that can be implemented separately.

“It has zero effect on the question of reducing the voting age, it’s only a process whether it is automatic or whether you go to the post office to register. There’s no need to tie it together, that is something that can take its time,” she said of the automatic voter registration. “But you have to bring down the voting age to 18, there’s no choice in the matter.”

“You made a promise to the youth of the country, keep it, that’s what we are saying,” she said.

Datuk Gurdial Singh Nijar, another lawyer representing the 18 Malaysian youths in this lawsuit, urged for leave to be granted as he said this case involves critical and important issues being raised for the first time in Malaysia’s courts, such as the issues of parliamentary sovereignty and the executive branch of government’s accountability to the Parliament.

“Datuk Ambiga has talked about the fact that it’s entirely within the discretion of the prime minister to call for an election, election date can be any time. If it is announced before the youth of this country are enfranchised to vote as Parliament has decided, then the implications are very serious, because this would mean the 1.2 million youths would be disenfranchised,” he said of the number of Malaysians currently aged 18 to 20.

Arguing that the Cabinet has a collective responsibility to Parliament, Gurdial said it would be akin to “closing the stable door long after the horse has bolted” if the government was to implement the constitutional amendment of lower voting age after elections have been held: “So our thrust at this point is that delay is unreasonable and there should not be any delay, because of the critical importance of the role of youths as recognised by Parliament.”

As for whether the EC and the government were justified in the delaying of the implementation of the lower voting age, Gurdial said that leave should be granted to enable the 18 Malaysian youths’ lawsuit to be heard, in order for the EC to present their reasons in court.

“So let them come to explain what is the real impediment so the court can decide whether there is sufficient justification to come to the conclusion that there are good reasons for delaying. Because if there are no good reasons, then they have exceeded the limits of their power,” he said.

Pointing out that the EC’s statement that the lower minimum voting age of 18 is expected to be able to be implemented “after September 2022”, Gurdial said this indicates that the EC could decide “at any time comfortable” to them or an “indeterminate time” that would fall outside of the courts’ scrutiny.

“So this is indeterminate time. They are claiming an absolute attitude to decide when they want to do it. This has to be examined carefully, whether or not this goes out of permissible limits they have in implementing the will of Parliament itself … You cannot have this open-ended power to decide for yourself when the will of Parliament will be implemented, the implications and circumstances must be looked at.”

After hearing arguments from both sides, High Court judge Datuk Ahmad Kamal Md Shahid said he would deliver his decision on June 17.