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Wednesday, February 21, 2018

Ex-judge: Court not using power it has over EC

PETALING JAYA - A retired judge said the courts can act to remedy an injustice to voters if the Election Commission (EC) has exceeded its authority.

Gopal Sri Ram said the EC was a creation of the Federal Constitution and the Federal Court had overlooked the wide powers conferred on courts by Paragraph 1 of the Schedule to the Courts of Judicature Act 1964.

“In my respectful view, the Federal Court overlooked the provision. That paragraph was taken from the Indian Federal Constitution.

“The Indian Supreme Court had said time and again that these powers enabled the court to remedy any injustice wherever it is found.”

Sri Ram said this in response to the three-member Federal Court which yesterday refused seven Melaka voters and two opposition MPs leave to appeal against two Court of Appeal rulings last year on the issue of redelineation proposals by the EC.

The seven voters — Chan Tsu Chong, Neo Lih Xin, Azura Talib, Lim Kah Seng, Norhizam Hassan Baktee, Amir Khairudin and Amran Atan — and Ipoh Barat MP M Kulasegaran as well as Ipoh Timor MP Thomas Su Keong Siong had filed complaints against the EC for its refusal to follow guidelines in the constitution in redrawing election boundaries.

Chief Justice Raus Sharif, who delivered the ruling, said the bench was of the opinion that the EC had complied with the provisions in the 13th Schedule of the constitution in conducting the redelineation proposals.

“It is our opinion that the EC’s recommendations are mere action and do not bind parties. So, its proposal is not amenable to judicial review,” he said.

Raus said the constitution only entrusted the Dewan Rakyat to decide on EC’s proposal.

“It is our duty to uphold the principle and the court cannot encroach on the functions of other bodies (legislature and executive), mandated by the constitution,” he said.

Sri Ram said since the EC was a creation of the constitution, any of its actions are subject to review under the paragraph stated.

“The only question the court has to ask is whether an injustice had been perpetrated by the EC in this case. The answer is ‘yes’ because of the nature of the complaints made by the voters.”

Therefore, Sri Ram said this was an appropriate case to grant leave.

“However, the voters are not without remedy. They can still seek to review the decision,” he said.

Basic right of litigants

Lawyer K Kengadharan, who shared Sri Ram’s view, said the judiciary had unfettered discretion and the court was the place to seek remedy if the EC had committed any injustice.

“It threatens the very basic right of litigants when the court decides that it has no power to intervene. This is definitely not an encouraging sign.”

Kengadharan said it appeared the bench had misconstrued or misread the law by completely shutting off the voters and MPs who came to the court to right a wrong.

“This is a bad precedent and can threaten our cradle of democracy.”

Meanwhile, Bersih 2.0 chairman Maria Chin Abdullah said she was disappointed with the outcome as it was clear that the EC had refused to follow the guidelines given in the constitution to conduct the redelineation exercise.

“Now, how are we expected to have faith that the EC will conduct a free and fair election when the redelineation itself is tailored to benefit a certain party?

“Is this the type of justice the court should be dishing out?”

Clause 9 of the 13th Schedule states that the prime minister who receives proposals from the EC could also modify the recommendations before presenting it in the Dewan Rakyat for approval. - FMT

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