Kerajaan Negeri Selangor v Suruhanjaya Pilihan Raya (W-01(A)-486-12/2017)

Page 1 of 15 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-01(A)-486-12/2017 ANTARA KERAJAAN NEGERI SELANGOR … PERAYU DAN

1. SURUHANJAYA PILIHAN RAYA

2. DATUK SERI MOHD HASHIM BIN ABDULLAH

3. DATUK HAJI ABDUL GHANI BIN SALLEH … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Rayuan Dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No. WA-25-186-10/2016 Dalam perkara Notis yang diterbitkan oleh Suruhanjaya Pilihan Raya pada 15.9.2016 dan syor-syor yang dicadangkan mengenai penyempadanan Bahagian pilihan raya Parlimen dan Dewan Undangan Negeri di Negeri Selangor Dan Dalam perkara Fasal 114(1) dan Fasal 116 Perlembagaan Persekutuan dan Jadual Ketiga Belas dengannya Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 Dan Page 2 of 15 Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964 dan perenggan 1 Jadual kepada Akta tersebut Antara KERAJAAN NEGERI SELANGOR … PEMOHON Dan

1. SURUHANJAYA PILIHAN RAYA MALAYSIA

2. DATUK SERI MOHD HASHIM BIN ABDULLAH

3. DATUK HAJI ABDUL GHANI BIN SALLEH … RESPONDEN-RESPONDEN] CORAM: AHMADI HJ. ASNAWI, JCA VERNON ONG LAM KIAT, JCA ABDUL KARIM ABDUL JALIL, JCA BRIEF GROUNDS OF JUDGMENT INTRODUCTION [1] On 15.9.2016, the EC published a “Notice of Proposed Recommendation for the Federal and State Constituencies in the States of Malaya as reviewed by the Election Commission in 2016” (‘the Section 4 Notice’) pursuant to clause (2) of Article 113 of the Federal Constitution and section 4 of the Thirteenth Schedule therein. [2] The Selangor State Government applied by way of judicial review to impugn the Section 4 Notice containing the proposed recommendations of the Election Commission’s (‘EC’) review of the division of the Federal Page 3 of 15 and State constituencies in Selangor. The application for judicial review was dismissed by the High Court on 7.12.2017. This is the Selangor State Government’s (‘the appellant’) appeal against the decision of the High Court dismissing their application for judicial review. [3] We heard arguments of counsel on 27.3.2018 and delivered our decision on 29.3.2018. The full grounds for our decision are set out hereunder. AT THE HIGH COURT [4] At the High Court, the appellants advanced four main grounds to challenge the Section 4 Notice:

(ii) The proposed recommendations are not based on the current electoral rolls, as required by section 3 of the Thirteenth Schedule;

(iii) The electoral roll used by the EC in the delimitation exercise is defective as there are 136,272 voters on the electoral roll in respect of which there are no addresses on the record of the roll; and Page 4 of 15

(iv) there was inadequate information and insufficient particulars in the Section 4 Notice, which impaired the rights of voters to make meaningful representation in response to the notice and which made the right to make such representations merely illusory. As such, it violated the rules of natural justice and the legitimate expectation of voter in the State of Selangor, the local authorities and the government of the state. [5] The decision of the learned judge is premised on the following main grounds:

(ii) At the point when the review exercise commenced on 14.7.2016 the current electoral roll was the Principal Electoral Rolls for the Year 2015 (‘the Principal Roll’) published on 13.5.2016. Neither the Supplementary Electoral Roll for the First Quarter of 2016 (‘the First Supplementary Roll’) nor the Supplementary Electoral Roll for the First Quarter of 2016 (No. Page 5 of 15 2) (‘the Second Supplementary Roll’) had been published yet as at that date;

(iii) The fact that the electoral roll relied upon by the EC for the purposes of its proposed recommendations in the Section 4 Notice did not record the addresses of all the electors in the state of Selangor is not in dispute. Nevertheless, the locality codes of an elector are sufficient in order for the EC to discharge its obligations under Part IV of the Federal Constitution. Under s 9A of the Elections Act 1958 (EA 1958) an electoral roll which has been certified or re-certified shall be deemed to be final and binding and shall not be questioned or appealed against or reviewed, quashed or set aside by, a court. Therefore, the correctness of an electoral roll even where the roll may not completely record the addresses of all the electors in a unit of review cannot be subject to any challenge in court (Peguam Negara Malaysia v Chan Tsu Chong (supra);

(iv) On the facts, the information provided by the EC in its proposed recommendations published pursuant to the Section 4 Notice was not inadequate as to warrant curial intervention. SUBMISSION OF PARTIES [6] On the first point relating to locus standi and justiciability learned counsel for the appellant argued that the learned judge having found that the allegation of malapportionment and gerrymandering was made out Page 6 of 15 erred in holding that the actions of the EC were non-justiciable. Like all constitutional bodies, the EC is subject to law and must act within the mandate assigned to it under the Federal Constitution. The learned judge erred in following Chan Tsu Chong and M Kula Segaran (supra) (art. 113(1) of the Federal Constitution; R v Boundary Commission Exp. Foot [1983] 1 All ER 1099, 1102; Mohinder Singh Gill v Chief Election Commissioner AIR 1978 SC 851; A C Jose v Sivan Pillai AIR 1984 SC 321; Digvijay Mote v Union of India [1993] 3 SCC 175; Election Commission of India v Ashok Kumar AIR 2000 SC 2977; Baker v Carr 369 U.S. 186 (1962); Wesbery et al v Sanders 376 U.S. 1 (1964); Reynolds v Sims 377 U.S. 533 (1964); Constituency Boundaries Commission v Baron [2001] 1 LRC 25; Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 56 (FC); Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] MLJU 69 (FC)). The appellant has the locus standi as it is the part of the unit of review which is most affected by the delimitation exercise since 18 of its 22 parliamentary constituencies are subject to a redrawing of electoral boundaries and a mass shifting of voters within the affected constituencies including the state constituencies that fall within the parliamentary constituencies (O 53 of the Rules of Court 2012 (ROC 2010)). [7] On the second point relating to the EC’s failure to use the current electoral rolls, learned counsel argued that the learned judge got the cut-off date for the commencement of the delimitation exercise wrong. The meeting on 14.7.2016 was not a meeting of the EC. It was an internal meeting chaired by the Secretary of the EC; the Secretary of the EC is not one of the seven members of the EC under Article 114 of the Federal Constitution. The proper constitutional cut-off date is the date of the Page 7 of 15 publication of the Section 4 Notice on 15.9.2017; as such the latest current electoral roll is the Second Supplementary Roll. [8] On the third point relating to the correctness of the electoral roll, learned counsel argued that it was wrong for the delimitation exercise to be conducted in the absence of addresses. The EC was also wrong to use the locality codes to conduct the delimitation exercises. Section 9A of the EA 1958 is not applicable to preclude the appellant from challenging the EC’s conduct in proceeding with the delimitation exercise without having the address of 136,272 voters and using locality codes instead. [9] Lastly, learned counsel argued that the Section 4 Notice has inadequate and insufficient particulars for voters to make meaningful representations in response and this has rendered their rights to make representations illusory. The legal standard of disclosure of information in a consultative process pursuant to Articles 113 and 10(1)(a) of the Federal Constitution includes the right to receive information (Sivarasa Rasiah v Badan Peguam Malaysia & another [2010] 2 MLJ 333, 344; Mat Shuhaimi bin Shafiei v PP [2014] 5 CLJ 22, 39; Port Louis Corpn v A-G of Mauritius [1965] AC 111, 1124-1125 PC; Regina v North and East Devon Health Authority, Ex parte Coughan [2001] QB 213, 258 CA; R (on the application of Moseley) v Haringey London Borough Council [2015] 1 All ER 495, 507, 511 and 512; Browne and others v Constituencies Boundaries Commission and others [2014] 5 LRC 385, 400). [10] In reply, learned senior federal counsel (SFC) argued that the appeal was academic as the EC’s proposed recommendations incorporated into a report under s 8 of the Thirteenth Schedule has been Page 8 of 15 submitted to the Prime Minister to be laid before the House of Representatives pursuant to s 9 of the Thirteenth Schedule. As such, the EC is no longer an affected party at this stage. The matter is within the exclusive jurisdiction of the Prime Minister and the House of Representatives. As for the other issues, the learned SFC supported the findings of the learned judge and argued that the appeal should be dismissed. DECISION [11] For convenience, we set out hereunder the grounds of our decision: I. Locus Standi – O 53 ROC 2012

Pursuant to O 53 only a person who is (i) adversely affected by (ii) the decision, action or omission in relation to the (iii) exercise of a public duty or function shall be entitled to make the application for judicial review. Section 5 of the Thirteenth Schedule lists out 3 persons who are vested with locus to object to the proposed recommendations and they include (i) the State Government or (ii) any local authority or (iii) a body of 100 or more persons. As such we are of the view that the appellant being a State Government has the locus standi to make the judicial review application. II. Justiciability

(1) Each Registrar shall prepare, publish and revise in the prescribed manner the prescribed electoral roll for the registration area for which he is appointed.

(2) The electoral roll for Parliamentary electors and State electors, shall, unless the Election Commission shall otherwise direct, be combined in a single register.” Section 9 of the Elections Act 1958 refers to a revision of electoral rolls. In this connection, s 15 empowers the EC to make regulations for the registration of electors and all matters incidental thereto; subsection 15(2)(c) provides for the time and procedure to be followed in preparation or revision of any electoral roll. In this connection, it is also pertinent to note that reg. 9 of the Elections (Registration of Electors) Regulations 2002 promulgated pursuant to s 15 of the Elections Act 1958 provides as follows: “9. Electoral roll for the purpose of general election or by-election For the purpose of a general election or a by-election, the Election Commission shall determine the last certified principal electoral roll and the supplementary electoral roll prior to the dissolution of parliament or a State Legislative Assembly or a vacancy occurring, to be used in the general election or the by-election.” [emphasis added] Page 12 of 15 It is quite clear from the provisions of Reg 9 above that the electoral rolls include the last certified principal and supplementary electoral rolls. As it is the declared intention of the regulations that the last certified principal and supplementary electoral roll shall be used in general election or by-election, it follows that as the preparation of the electoral rolls is for the purpose of general election or by-election, any certified supplementary roll as at the commencement date of the review exercise should also be used. In the light of the foregoing, it is our considered view, the words ‘current electoral rolls’ includes the Principal Electoral Roll and the 1st and 2nd Supplementary Rolls. (bb) the date the EC’s review exercise commenced Learned SFC submitted that the review commenced on 14.7.2016 when the meeting was held at the secretariat of the EC. Learned counsel for the appellant argued that the review commenced on the date of the publication of the Section 4 Notice. In our view this is quite a straight forward point because it is stipulated in clause 9 of Article 113 that the date of commencement of a review shall be the date of the publication in the Gazette of the s 4 Notice. Accordingly, we agree with the appellant that the commencement date of the review falls on 15.9.2016. In this regard, learned SFC argued that it would be impracticable for the EC to use any supplementary electoral rolls which are published from time to time after Page 13 of 15 the review exercise has commenced given the fact that the EC must in its Section 4 Notice set out the effect of their proposed recommendations and a copy of the same for inspection within the constituency. In short, at the date of the publication of the Section 4 Notice, the proposed recommendations must have been completed and open for inspection. In our view, this argument is not without merit. Section 5 of the Thirteenth Schedule provides for the EC to receive representations and hold local inquiries to hear and consider the representations and objections. The timeline of 2 years under Article 113(2)(iii) runs from the date of the publication of the Section 4 Notice. Put another way, the EC is required to complete its task of receiving representations and objections and to hold local inquiries under ss 5, 6 and 7 of the Thirteenth Schedule within the 2 year timeline. We agree with the view posited by learned SFC as a contrary view would lead to an absurdity in that on the date of the publication of the Section 4 Notice the EC must have started the review process and at the same time publish its first set of proposed recommendations. As such, we agree with learned SFC that the actual review process began much earlier – on 14.7.2016 on which the meeting was held at the secretariat of the EC. It would have been a practical impossibility for the EC to ‘commence the review’ and publish the s 4 Notice on 15.9.2016. As at that date the actual review commenced on 14.7.2016 the certified 1st or Page 14 of 15 2nd Supplementary Electoral Rolls had not yet come into existence; the current electoral rolls was the Principal Electoral Roll. Accordingly, we find no merit in the appellant’s argument that the EC was bound to use the Principal, 1st and 2nd Supplementary Electoral Rolls. III. Use of Invalid Roll and Insufficiency of Information in the s 4 Notice In respect of these 2 issues, we are in agreement with the decision of the learned judge that pursuant to s 9A of the EA 1958 the correctness of an electoral roll cannot be subject to any challenge in court even when the roll may not completely record the addresses of all the electors in a unit of review. We are also in agreement with the findings of the learned judge that the information provided by the EC in its proposed recommendations published under s 4 Notice was not inadequate as to warrant curial intervention. IV. Whether the appeal is academic? Having addressed and given careful consideration to the issues raised and in view of the foregoing, we do not think it is necessary to address this issue. Page 15 of 15 The appeal is thereby dismissed. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 23rd July 2018 Counsel: For the Appellant: Cyrus Das (Latheefa Koya with him) Messrs Daim & Gamany For the Respondent: Amarjeet Singh (Alice Loke, Suzana Atan, Shamsul Bolhassan, Azizan Md Arshad and Nik Azrin Zairin with him) Jabatan Peguam Negara, Putrajaya