JANUARY 11 — Currently, the Election Commission (EC) headed by the new chairman is looking into the constitutionality of the just completed redelineation exercise carried out last year.
The problem is if it is not unconstitutional, then according Article 113 (2)(ii) of the Federal Constitution, the EC has to wait for another eight years before recommending any changes.
There is one angle that the EC may look into.
Section 8 of the Thirteenth Schedule to the Federal Constitution states:
“8. The Election Commission shall, having completed the procedure prescribed by this Part, submit to the Prime Minister a report on constituencies showing:
(a) the constituencies into which they recommend that each unit of review should be divided in order to give effect to the principles set out in section 2; and
(b) the names by which they recommend that those constituencies shall be known, or stating that in their opinion no alteration is required to be made in order to give effect to the said principles.”
According to Section (2) (a) to (d) of the Thirteenth Schedule, the EC must ensure the following:
(i) While having regard to the desirability of giving all electors reasonably convenient opportunities of going to the polls, constituencies are not to be divided in such a way that they cross state boundaries;
(ii) Regard ought to be had to the inconveniences of State constituencies crossing the boundaries of federal constituencies;
(iii) Regard ought to be had to the administrative facilities available within the constituencies for the establishment of necessary registration and polling machines;
(iv) The number of electors within each constituency in a State ought to be approximately equal;
(v) Having regard to the greater difficulty of reaching electors in the country districts and other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such rural constituencies,
(vi) Regard ought to be had to the inconveniences attendant on alteration of constituencies,
(vii) Regard ought to be had to the maintenance of local ties.
Therefore, under the Federal Constitution, the EC shall (which means it is mandatory) submit to the prime minister a report recommending changes in constituencies in order to give effect to the principles set out in Section 2, or recommending no changes in constituencies in order to give effect to the principles set out in Section 2.
Either way, the giving effect to the principles set out in Section 2 is what gives rise to the constitutionality of the report to the prime minister.
From a reading of Section 8 of the Thirteenth Schedule, it does not require the EC to merely state or reproduce the wordings in Section 2. It requires the EC to give effect to it. In other words, the EC must give effect to it in deciding for or against changes in constituencies.
If the report does not state it recommends changes to give effect to the principles in Section 2, then that report is unconstitutional. As a consequence, the laying of the report to the House of Representatives and any approval of it is also unconstitutional.
The relevant report is called “Laporan Kajian Semula Persempadan Mengenai Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihanraya Persekutuan Dan Negeri Di Dalam Negeri-Negeri Tanah Melayu Kali Keenam Tahun 2018 (Jilid 1) dated March 6, 2018.
Let us look at the relevant report. The relevant Clause is 2.1.2 of Chapter 2 (Prinsip-Prinsip dan Kriteria Kajian Semula Persempadanan).
On page 15 of Chapter 2 of the report, it reproduced Section 2(a) of the Thirteenth Schedule and gave an explanation of Section 2(a).
As for Section 2 (b), it also reproduced Section 2(b) of the Thirteenth Schedule and gave an explanation of Section 2(b). In fact, it went on further to state the following on Section 2(b):
“Namun begitu, tidak dinafikan bahawa kebanyakan negeri-negeri di Tanah Melayu mempunyai bilangan pentadbiran daerah yang berbeza daripada bilangan PBT. Sebagai contoh, Negeri Sembilan mempunyai 9 buah pentadbiran daerah dan 13 buah PBT. Manakala, Negeri Kelantan pula mempunyai 11 buah jajahan (pentadbiran daerah) dan 12 buah PBT. Oleh yang demikian, adalah sukar kepada SPR untuk memastikan supaya seluruh bahagian pilihan raya Persekutuan dan negeri berada di dalam satu kawasan pentadbiran daerah dan PBT.”
With regards to Section 2(c), it also reproduced Section 2(c) of the Thirteenth Schedule and gave an explanation of Section 2(c). In fact, it went on further to state the following on Section 2(c):
“Walaupun begitu, wujud juga keadaan-keadaan tertentu yang luar biasa seperti kewujudan faktor semula jadi yang tidak boleh diubah atau dielakkan seperti keadaan geografi, topografi dan sebagainya yang kadangkala menghalang prinsip dan garis panduan berkenaan digunapakai secara konsisten. Oleh itu, jika terdapat perbezaan antara bahagian-bahagian pilihan raya dalam kategori yang sama ia tidak dapat dielakkan dan bukanlah sesuatu yang disengajakan.”
With regards to Section 2 (d), it also reproduced Section 2(d) of the Thirteenth Schedule and gave an explanation of Section 2(d).
In the end at Chapter 5 of the report, it is recommended that there be amendments and change of name to 12 federal seats and 28 state seats.
It is humbly submitted that the report goes against Section 8 of the Thirteenth Schedule which requires the EC to give effect to Section 2 of the Thirteenth Schedule. In fact, from the report, not only does it not state anywhere that it gives effect to, but the recommendation actually goes against Section 2 of the Thirteenth Schedule.
This is where the entire exercise had become unconstitutional. Article 130 of the Federal Constitution (Lampiran 5) states:
“130. Advisory jurisdiction of Federal Court
The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”
Therefore, since it was the Agong that approved the report ultimately pursuant to Section 12 of the Thirteenth Schedule, the YDPA may refer to the Federal Court on this issue that has arisen, and the Federal Court may pronounce its opinion in open court.
It is my humble suggestion that the Pakatan Harapan government set up a review committee with a limited scope and term of reference, specifically, firstly to deliberate on whether there is a high probability that the EC’s report dated March 6, 2018 is in breach of the mandatory Section 8 of the Thirteenth Schedule of the Federal Constitution, and if the answer is in the affirmative, to secondly make a recommendation to the YDPA to urge His Majesty to invoke His Majesty’s power under Article 130 of the Federal Constitution to refer two questions to the Federal Court, for its opinion as to the effects of Section 8 of the Thirteenth Schedule, namely:
i) Whether the EC’s report dated March 6, 2018 was in breach of Section 8 of the Thirteenth Schedule of the Federal Constitution?
ii) If yes, would such non-compliance of Section 8 of the Thirteenth Schedule of the Federal Constitution by the EC render the entire redelineation exercise void?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.