Media Statement by Dr. Ong Kian Ming, MP for Serdang, on the 22nd of July, 2017
Has the Election Commission just implicated itself by admitting that it has destroyed the electoral rolls it used for the 1994 and 2003 delimitation exercises?
The recent decision made by the Court of Appeal on Thursday, 20th of July, 2017, to set aside the High Court order for the Election Commission to provide the Selangor government information on 136,272 registered voters without proper addresses, may seem like a setback for those seeking to put a stop to the ongoing delimitation exercise. But part of the argument used by the federal counsel – namely that the Election Commission had discarded the records of these voters from the electoral rolls used in the 1994 and 2003 delimitation exercise – may come back to haunt the Election Commission.
The Selangor government can still appeal the Court of Appeal judgment at the Federal Court. But even if it loses the appeal at the apex court, the judicial review filed by the Selangor government against the Election Commission will still have to be heard at the High Court (Proceedings were postponed while waiting for the Court of Appeal decision stated above).
Recall that in December 2016, the High Court granted leave to the Selangor state government for its judicial review challenging the constitutionality of the ongoing delimitation exercise, which started on the 15th of September, 2016.
To recap, the judicial review case brought forth by the Selangor government was based on the following four grounds:
- Ground ONE: The EC’s Proposals are Unconstitutional as Tainted by Malapportionment and Gerrymandering
- Ground TWO: The Electoral Roll Complaint: Unconstitutionality arising from the EC’s failure to use the Current Electoral Rolls
- Ground THREE: Election Commission’s Use of a Defective Electoral Roll With Missing Addresses of Voters
- Ground FOUR: Insufficient Particulars in the Proposed Recommendations Which Impaired Right To Make Meaningful Representations
By admitting that it has destroyed previous records of voters, including details containing the addresses of these voters, the Election Commission may have opened the door for its ongoing delimitation exercise to be questioned under Ground THREE (see above), which is the use of a defective electoral roll to conduct the delimitation exercise.
To make things easier to understand, let me illustrate with a simple example. Jalan Cheras is a very long road which starts in the heart of Kuala Lumpur at the intersection between Jalan Pudu and Jalan Tun Razak. It snakes through many housing areas in Cheras before finally ending in the center of Kajang town. (One has to remember that the naming of this road predated the creation of the Federal Territories Kuala Lumpur so the entire Jalan Cheras would have been in the state of Selangor)
Imagine if the voter was assigned to a particular locality along Jalan Cheras and the exact address of this voter was subsequently destroyed. How will the Election Commission determine which constituency this voter will be placed if the boundaries of the constituencies of the seats along Jalan Cheras were to be changed? At the time of writing, under the boundaries used in the 2013 general elections, Jalan Cheras passes through the P123 Cheras parliamentary constituency and the N23 Dusun Tua and N25 Kajang state seats in the P101 Hulu Langat parliament constituency. With the rapid development which has happened and is currently happening along Jalan Cheras, how can the EC accurately determine which constituency to place a voter without knowing his or her exact address?
In reality, the dirty little secret which the EC already knows but does not want to admit to is that our electoral roll is seriously flawed. In the past, when the BN was dominant and there was little scrutiny of the electoral roll, the EC allowed politicians (mostly from the BN) to register voters en masse with little regard to knowing exactly where these voters were living at. Some had complete addresses, others didn’t. Prior to 2002, voters did not need to register according to their IC address. We are still living with this legacy till today. Which is why there is a large number of voters without complete addresses even in developed states like Selangor and Kuala Lumpur.
This much was clear to me as I uncovered various problems associated with the electoral roll under the Malaysian Electoral Roll Analysis Project (MERAP) in 2012.
This is also the reason why lawyers representing the EC always refer to Section 9A of the Elections Act 1958 which prevents a gazetted electoral roll from being challenged in court. They hide behind this so-called ‘defense’ even though in this particular case, the Selangor government is not questioning the inclusion of these 136,272 voters in the electoral roll, but is asking for more information to determine if the constituency delimitation process has been carried out in accordance to constitutional principles.
The fight against the unfair delimitation exercise will continue. The judicial review case taken up by the Selangor government has prevented the Election Commission from starting the First Round of the constitutionally mandated public hearing process. The High Court also recently ruled in favour of the Selangor state government by granting an injuction application to stop the Election Commission from passing the delimitation exercise proposal to the Prime Minister without the inclusion of Selangor.
The judicial review in the High Court will continue. In the worst of circumstances, even if the High Court rules against the Selangor government, the EC must complete two rounds of a public hearing including a public display of maps and relevant information between rounds one and two before the delimitation exercise for Peninsular Malaysia can be completed. This gives time for the Selangor government to mount an appeal all the way up to the Federal Court if necessary.
There is also another High Court hearing on the right of the EC to move voters from the Batang Kali state seat to the Kuala Kubu state seat in Selangor during the ‘boundary correction’ exercise which took place in April 2016.
The Election Commission must be surprised by the slew of court cases taken up by the Pakatan Harapan state governments in Selangor and Penang and by groups of affected voters in various states including Penang, Perak, Selangor, Kuala Lumpur, Melaka and Johor. Even though some of these cases have been ruled in the favour of the EC, it must know that the will of the people cannot be defeated so easily, especially when the pressure for reforming our electoral system is maintained by organisations such as BERSIH and by supporters who want clean and fair elections in Malaysia.
Dr. Ong Kian Ming
Member of Parliament for Serdang