Undi18: Youths win leave for judicial review of EC’s decision to delay lowering voting age

Malaysian youths who filed a lawsuit to push for their right to vote by July 2021 are seen with their lawyers at the Kuala Lumpur Court Complex April 19, 2021. — Picture by Firdaus Latif
Malaysian youths who filed a lawsuit to push for their right to vote by July 2021 are seen with their lawyers at the Kuala Lumpur Court Complex April 19, 2021. — Picture by Firdaus Latif

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KUALA LUMPUR, June 17 — The Undi18 youth movement secured a small preliminary victory as the High Court today agreed to hear the lawsuit by 18 Malaysian youths seeking for their right to vote to be enforced by July 2021, instead of only after September 2022.

In his decision delivered online today, High Court judge Datuk Ahmad Kamal Md Shahid effectively dismissed the Attorney General’s Chambers’ (AGC) preliminary objection and allowed the 18 youths’ application for leave for judicial review.

“Having considered the application, it is my opinion that the applicants have passed the leave threshold, accordingly this application for leave to commence judicial review proceedings is allowed with no order as to cost,” the judge said in a session over video-conferencing platform Zoom.

Previously on May 24, the judge had heard the bid by 18 Malaysian youths aged 18 to 20 who sought leave for the High Court to hear their lawsuit against the prime minister, the government of Malaysia and the Election Commission (EC).

It also heard on the same day the AGC’s bid 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 to be able to enforce their right to vote by July 2021 as promised almost two years ago, instead of only after September 2022 as the EC abruptly announced in late March 2021.

The judge’s decision today means that the youths have cleared the first hurdle in their court challenge, with the next step to be the High Court’s hearing of their judicial review application or lawsuit.

Following the decision, the High Court today fixed July 1 for case management of the lawsuit.

Quick background to the case

The Dewan Rakyat had on July 16, 2019 unanimously voted in favour of the Constitution (Amendment) Bill 2019, which included provisions to amend the Federal Constitution to reduce the minimum voting age in Malaysia from 21 to 18. The Dewan Negara on July 25, 2019 also unanimously passed the Bill.

The Constitution (Amendment) Act 2019 was granted royal assent by the Yang di-Pertuan Agong on September 4, 2019 and was gazetted as law when it was published in the government gazette on September 10, 2019.

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.

As early as September 3, 2019, the EC had said the lower voting age of 18 years old would be enforceable 18 to 24 months later, and then law minister Datuk Liew Vui Keong said in October 2019 that it is expected to be implemented latest by July 2021.

Throughout 2019 and 2020, the EC and the Malaysian government’s officials had repeatedly stated that the lowering of voting age from 21 to 18 would take effect by July 2021.

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.

However, Dewan Negara president Tan Sri Rais Yatim was reported saying the next day on March 11, 2021 that the country was not ready for the lower voting age of 18, and the EC’s new chief Datuk Abdul Ghani Salleh on March 25, 2021 said it is expected to be done after September 2022.

Following the EC’s announcement, the 18 Malaysian youths aged 18 to 20 — of diverse backgrounds and coming from various states including Johor, Kelantan and Sarawak — on April 2 filed their lawsuit via a judicial review application.

In lawsuits filed via judicial review application where the courts are asked to review the actions or decisions of a public body or the government, the applicants have to seek leave for judicial review or to seek permission from the courts for their lawsuit to proceed and be heard.

The Election Commission logo is seen at its headquarters in Putrajaya January 10, 2019. — Picture by Yusof Mat Isa
The Election Commission logo is seen at its headquarters in Putrajaya January 10, 2019. — Picture by Yusof Mat Isa

The judge’s reasons

The EC had in the March 25, 2021 press statement said that both the automatic voter registration (AVR) and the lowering of the voting age to 18 will only be implemented after September 1, 2022 purportedly due to challenges faced by the EC amid the movement control order.

On March 27, 2021, the prime minister said he was satisfied with the EC chief’s explanation that the lower voting age is expected to be implemented after September 1, 2022. The 18 youths had said this meant both the prime minister and Malaysian government had “accepted and affirmed” the EC’s decision to delay implementing the lower voting age from July 2021 to after September 1, 2022.

In deciding whether to grant leave to the 18 youths to proceed with their lawsuit, the judge examined three main issues, including whether the EC’s decision to delay the lower voting age’s implementation and which had been accepted and affirmed by the prime minister and federal government is an impugned decision amenable or open for judicial review, and whether the 18 youths are adversely affected by the decision.

The judge held that the prime minister, the Malaysian government and the EC are all categorised as public authorities, and that this meant that their decisions are amenable or subject to review by the courts.

“Therefore, it is my opinion that the decision of the first respondent (prime minister) on behalf of the second respondent (government of Malaysia) on March 27, 2021 in accepting and affirming the third respondent’s (EC) decision on March 25, 2021 to postpone the implementation of the lowering of the voting age from 21 to 18 years old from July 2021 to after September 1, 2022 is a legal decision that will bind related parties. Hence, it is my view that it falls under impugned decisions that are amenable for judicial review,” the judge said.

As for the legal requirement that only those who are adversely affected by the decision of a public authority are entitled to file an application for judicial review, the judge agreed that the 18 youths have been adversely affected by the respondents’ decision to not enforce the lower voting age either immediately or before July 2021.

The judge noted that the 18 youths are all Malaysian citizens aged between 18 to 20, and also noted their argument that the delayed lowering of the voting age means they cannot register themselves as voters and would be unable to vote in any elections which are held after July 2021. (The 18 youths had said the lower voting age and AVR can be implemented separately, arguing that the enforcement of the voting age at 18 can be done first.)

“This includes the possibility of not being able to vote in the 15th general elections,” the judge had said in noting how the youths said they are being adversely affected, besides also noting that the youths are part of the Undi18 movement which had successfully advocated for the constitutional amendment to reduce Malaysia’s minimum voting age from 21 to 18.

The judge noted that the AGC had in its preliminary objection argued that the 18 youths’ lawsuit is frivolous and vexatious and a hopeless case that does not merit a full hearing, and that the AGC had also argued against the court granting leave to the youths by saying it is still premature at this stage and as the necessary amendments to election-related laws and regulations need to be made first in order to enforce the constitutional amendments.

The judge noted however that Parliament had already passed the constitutional amendments to lower the voting age from 21 to 18 years old and royal assent had already been given, with the only outstanding issue being when this constitutional amendment comes into effect.

The judge agreed with the 18 youths that the required amendments to the election-linked laws and regulations is a secondary issue, which should not stand in the way for the constitutional amendment to come into effect.

The judge pointed out the clear legal position of the Federal Constitution’s supremacy over all other laws in the country, citing the Federal Constitution’s Article 4(1) where the Federal Constitution is stated as the supreme law of Malaysia and that any law inconsistent with the Federal Constitution is void.

“Hence, it is my view that the applicants’ case is not frivolous nor vexatious,” the judge said.

The judge decided that the 18 youths’ lawsuit should be allowed to proceed to the substantive stage or a full hearing, to enable the three respondents to provide an explanation by affidavit before the court decides whether the 18 youths’ lawsuit is successful and what reliefs are appropriate.

The lawyers who represented the 18 Malaysian youths are Datuk Ambiga Sreenevasan, Datuk Gurdial Singh Nijar, New Sin Yew, Lim Wei Jiet, Abraham Au, Beatrice Chin Yuen Xin, and Joshua Wu Kai-Ming.

Representing the Attorney-General’s Chambers (AGC) today are senior federal counsels Shamsul Bolhassan, Azizan Md Arshad, and Raja Shahril Anuar Raja Baniamin.

Eight of the youths who filed the lawsuit attended the High Court’s online proceedings today, namely Chiang Kah Vern, Elrynna Ixora Mohamed Rizal, Izanna Azuddin, Jonathan Lee Rong Sheng, Lim Yue Kin, Nik Aqil Farhan Nik Mohd Erman, Nurul Rifayah Muhammad Iqbal, and Zara Laticea Taza.

The rest of the 18 youths who filed the lawsuit are Azif Fazriq Azizi, Dawson Chong Soon Fook, Elisa Shafiqah Shahrilnizam, Kyra Iman Kabir Subhash Bhatia, Lim Joshua, Muhammad Rifqi Faisal Alvin, Sharifah Khadijah Syed Razif, Sor Wai Kit, Tan Wei Wei, and Umar Farouq Rohaizad.

Undi18 co-founder Qyira Yusri also attended the Zoom session.

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