KKUALA LUMPUR, Dec 7 — The Selangor government today obtained a court order that will freeze the Election Commission’s (EC) local enquiries in the state and effectively pause the entire redelineation exercise in peninsular Malaysia.
In granting the stay order on local enquiries in Selangor, High Court judge Azizul Azmi Adnan observed that the lack of a stay could cause the Selangor government’s lawsuit to become academic.
“I’m of the view that the balance of justice lies with the applicant and for the reason and because of the factors I have explained,” he said in delivering his decision.
The same judge had earlier dismissed the Selangor government’s court challenge against the EC’s allegedly unconstitutional bid to redraw electoral boundaries in the state.
Immediately after losing the challenge, the state government applied for a stay of any action by the EC to complete its redelineation process in Selangor until it exhausts its appeal through the courts.
Local enquiries — which are where the EC hears objections from the public, local authorities, state government — must be held before the EC can conclude its redelineation process.
Azizul Azmi noted that the Selangor government’s lawsuit was “unprecedented in constitutional history” and would have “far-reaching consequences”, further pointing out his opinion that the courts would have no jurisdiction to hear a challenge once the EC submits its report on its proposed redelineation exercise to the prime minister.
“Once the report is submitted to the prime minister, the Selangor government’s appeal would be rendered nugatory,” the judge said.
Despite acknowledging that the EC which is established under the Federal Constitution would have its constitutional functions encumbered by the stay order, the judge pointed out this was merely temporary in nature.
“A stay granted by the court would result in a clog on its ability to perform its constitutional function.
“Such clog however is a temporary one and EC has until September 2018 to finish its redelineation exercise,” he said, referring to the constitutional provision which sets a two-year timeline for the EC to complete a redelineation exercise.
Under Article 113 of the Federal Constitution, the EC is required to complete its review of voting boundaries within two years, starting from when the notice of its proposed redelineation exercise is published and ending when its redelineation report is submitted to the prime minister. The EC had gazetted its notice on September 15, 2016.
Latheefa Koya, one of the lawyers representing the Selangor government, said the stay order would mean that the EC could not rush its redelineation exercise.
“We are glad they can’t rush into the process. Status quo [remains],” she told reporters, pointing out that the EC could still continue its redelineation process later on if it wins against the Selangor government in the higher courts.
The 14th general election must be held by August 2018, but can be called earlier.
Stay order applies to whole Selangor
Earlier in court, Selangor government’s lawyer Datuk Cyrus Das had sought a stay of local enquiries in Selangor pending its appeal in the Court of Appeal.
He argued that there was “special circumstances” to do so, as its case would become “futile” if “swift” action is taken by the EC to complete its redelineation despite ongoing court proceedings at the Court of Appeal.
Senior federal counsel Datuk Amarjeet Singh Serjit Singh, who represented the EC, objected to the application for a stay order.
“The EC should and must be allowed to carry out its constitutional duty,” he said when objecting the stay.
Amarjeet also argued that the stay order on local enquiries should apply only to the Selangor government as it was the only party in this lawsuit, instead of all the rest in Selangor who had objected the EC’s redelineation exercise.
But the judge decided that the stay order should be a state-wide freeze: “I am of the view that the nature of the (Selangor government’s) challenge actually affects the constituency boundaries of the whole state. For that reason, the stay should apply to the state.”
In order to complete the redrawing of boundaries of electoral seats in Peninsular Malaysia, the EC has to hear all objections by holding two rounds of local enquiries in all the states in Peninsular Malaysia.
This is because the voting regulator is required to review the electoral boundaries of all states of Peninsular Malaysia collectively as a single unit.
Polls reform group Bersih 2.0’s Mandeep Singh and Chan Tsu Chong both confirmed that the EC has completed its second round of local enquiries in Melaka. That was previously put on hold due to a stay order.
Selangor is now the only state in Peninsular Malaysia where local enquiries have yet to be held.
The EC will have to complete all local enquiries in Selangor before it can continue with the next stage of submitting a report on its finalised proposals for redelineation to the prime minister for approval by Parliament and the Yang di-Pertuan Agong. The voting boundaries will only be changed after the ruler approves the changes.