KUALA LUMPUR, March 6 — The Election Commission (EC) today through the Attorney-General’s Chambers (AGC) objected to a lawsuit over 949 voters at an alleged uncompleted army camp in Segamat, by saying it had already gazetted their registration as voters, a lawyer said.
Lawyer Michelle Ng, who represented 48 Segamat voters who sued the EC for the second time, said the AGC today said the 949 voters comprising army personnel and their spouses had already been gazetted in the supplementary electoral roll.
Ng noted that the EC’s gazetting of the 949 voters was on the same day when the Court of Appeal had refused to allow the 48 voters from continuing a separate lawsuit challenging the 949 voters’ registration.
“On February 21 itself, the 949 voters were gazetted. So according to the AG, they raised a preliminary objection which is premised on Section 9A of the Election Act.
“It basically says that where an electoral roll or supplementary electoral roll has been gazetted, that it cannot be questioned by any court,” she told Malay Mail when contacted today.
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 the AGC had 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.
“But we took the position that the ouster clause doesn’t apply given the Federal Court’s decision of M. Indira Gandhi. The Federal Court there dealt with the law on ouster clauses and decided that if the challenge relates to whether an administrative body has gone beyond their jurisdiction, then the ouster clause doesn’t apply.
“We named three respondents — the EC, the registrar and also the adjudicating officer. We say they have gone beyond their jurisdiction in failing to apply Article 119 of the Constitution, which requires a voter to be a resident when he votes,” she said.
This afternoon was the hearing of the 48 voters’ application for the High Court’s nod for its new court challenge over the registration of the 949 voters using the Segamat army camp’s address.
The hearing was in chambers before High Court judge Datuk Kamaludin Md Said, with Joanne Chua also representing the 48 voters and with senior federal counsel Muzila Mohamed Arsad representing those sued.
Kamaludin fixed this Thursday to deliver his decision on whether he would hear the 48 Segamat voters’ new court challenge.
The 48 Segamat voters had on February 26 filed an application for leave for judicial review to stop the registration of the 949 voters, naming the EC; the Johor electoral registrar Shafie Taib; Segamat adjudicating officer Miswan Yunus as respondents.
The 48 voters are 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 are 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 previous lawsuit
In the first lawsuit filed by the 48 voters last December 14, they had sought similar court orders for the entry of the 949 voters’ names in the supplementary roll to be unconstitutional, and to quash such entry.
The 48 voters were previously granted leave at the High Court to have that lawsuit heard, but the Court of Appeal had on February 21 decided that the lawsuit should not proceed as it was premature.
The AGC had argued in the Court of Appeal that the 48 Segamat voters’ lawsuit was premature due to pending appeals when their lawsuit was filed, as the 48 had appealed to the adjudicating officer after the electoral registrar dismissed their objections to the inclusion of the 949 voters.
In the new lawsuit filed by the 48 voters on February 26, one of them — Tey Kim Suan — shared what they had generally experienced during the appeal hearing with the adjudicating officer this January 3 to January 7.
In an affidavit submitted to the court, Tey claimed that the appeal hearings were held in secret with the 48 voters disallowed from being represented by lawyers, and that those not fluent in Bahasa Malaysia were also denied an interpreter.
Tey said a representative of the army voters — who was present during the appeal hearing as witness — had failed to show proof that they were residing in the Segamat army camp and had not produced a Certificate of Completion and Compliance to show the army camp had been completed.
Tey had among other things said that photos of the Segamat camp taken in November 2017 had shown a notice board stating that it was due to be completed on April 16, 2018.