The decision, action and omission of the Respondent in relation to the performance of this aspect of their public function is subject to judicial review. In other words, the Respondent is not above the law. Hence, this head of preliminary objection must fail. - Judge Datuk Yew Jen Kie
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
APPLICATION FOR JUDICIAL REVIEW NO: KCH-4 13NCVC-3/1-2015
5
In the matter of an application by SEE CHEE HOW (WN KP
640120-13-7 5635) and PAULS BAYA (WN KP 601031-13-5391)
(Application made for and on behalf of themselves and others
being the registered voters in the state of Sarawak having an interest in the
proposed recommendations of the Election Commission of Malaysia to review the
division of the State of Sarawak into constituencies for the purpose of elections
to the Sarawak State Legislative Assembly) having an interest in the proposed
recommendations of the Election Commission of Malaysia to review the division of the State of Sarawak into
constituencies for the purpose of elections to the Sarawak State Legislative Assembly for inter alia a
Declaration that the publication and or notification of the Election Commission under Clause (2) of
Article 113 of the Federal Constitution to review the division of the State of
Sarawak into constituencies for the purpose of elections to the Sarawak
State Legislative Assembly was not in
compliance with the provisions contained in the Thirteenth Schedule and is null, void and of no effect;
 |
| See Chee How |
And for inter alia a Declaration that the proposed recommendation
of the Election Commission of Malaysia toreview the division of the State of
Sarawak into constituencies for the
purpose of elections to the House of 6 Representatives was
unconstitutional and is null, void and of no effect;
And for inter alia a Declaration that there is serious
and considerable lacking in the detailed particulars of the proposed
recommendations purported disclosed and
specified in the First Schedule, Second Schedule (both are annexed to the
Notice published pursuant to Clause 4 of the Thirteenth Schedule) and the draft
Constituency Plan which are opened for inspection for 5 January 15 up to and including 4 February
2015 at the places specified in the Third Schedule annexed to the Notice pursuant to clause 3 of the Thirteenth
Schedule,
And
for inter alia a Mandatory Order directing that the
Election Commission republishes a notice of its
proposed recommendations to review the division of the State of Sarawak into constituencies for the purpose of
elections to the Sarawak State Legislative Assembly in full compliance with the
provisions contained in the Thirteenth Schedule.
JUDGMENT
1. The State Legislative Assembly of the State of Sarawak
passed the Dewan Undangan Negeri (Composition of Membership) Bill 2014 to increase the number of seats in
the Assembly from 71 to 82 and it was
enacted as the Dewan Undangan Negeri (Composition of Membership) Ordinance 2014. The amendment to Clause (2) of Article
14 of the Sarawak State Constitution came into effect on 5th December 2014.
2. Thereafter, the Respondent undertook a review of the
division of the Federal and States constituencies for the purpose of election in the State of Sarawak. On 5th January 2015, the Respondent published
the “Notice under Section 4 of Part II
of the Thirteenth Schedule to the
Federal Constitution” of the “Proposed Recommendation for Federal and
State Constituencies in the State of Sarawak as Reviewed by the Election
Commission in 2014” dated and/or
gazetted on 23rd December 2014 [Exhibit SCH-2] in the English language
New Sarawak Tribune newspaper and Bahasa Malaysia language Utusan Sarawak
newspaper, both on the same day, 5th January 2015.
4. The Respondent also placed the Notice as shown in
Exhibit 21 SCH-2 in the Borneo Post, Sabah edition and the New Strait Times.
5. Unhappy with the manner of the publication of the
Notice and the insufficient information in the Notice on the effect of the Proposed
Recommendation, the Applicant filed the present application for leave for judicial
review.
Grounds of Application
6. The grounds in support of the leave application are:
1. The Respondent Election Commission has abridged,
restrict and/or impair the Applicants’ rights to have notice
of the effect of the Respondent’s proposed recommendations and has acted in error and or breaching inter alia the provisions of
the Thirteenth Schedule of the Federal
Constitution as the Respondent Election Commission of Malaysia has not
published in at one newspaper circulating in the constituency (constituency) a
notice stating:
(a) The effect of the proposed recommendations of the Respondent
Election Commission of Malaysia, that a copy of the proposed recommendation is
opened to inspection at a specified place within the constituency
(constituencies); and
(b) That representations with respect to the proposed
recommendations may be made to the Respondent Election Commission of Malaysia within one month after
the publication of such notice.
2. The legal authority and/or power of the Respondent
Election Commission of Malaysia to make
recommendation under Clause (2) of Article 113, in this instant impugned
proposal for delimitation,
was derived and/or pursuant to the passing of the Dewan
Undangan Negeri (Composition of Membership) Bill 2014, the enactment of the
Dewan Undangan Negeri (Composition of Membership) Ordinance 2014 and the
gazette notification of the amendment of Clause (2) of Article 14 of the Constitution of the State
of Sarawak (none of which was specified in the notice published by the
Respondent Election Commission of Malaysia), that there has yet and has been
no amendment to Article 46 of the
Federal Constitution to change the composition of the Dewan Rakyat, the
Respondent Election Commission of Malaysia has acted in excess of their legal
authority and or power to review the division of the State of Sarawak into
Federal Constituencies and consequently proposed in their report such
recommendations, inter alia, no alteration in the Federal Constituencies for
the State of Sarawak.
3. The Respondent Election Commission of Malaysia has
also acted ultra vires the Federal
Constitution in assuming the legal authority
and/or power to make amendment to one Federal Constituency in the State of Sarawak, the shifting of state
constituencies from one parliamentary
constituency to another and the redrawing of boundaries of constituencies not involved in
the creation of the new state
constituencies.
4. There is serious and considerable lacking in detailed
particulars of 30 the proposed recommendations purported disclosed and
specified in the First Schedule, Second Schedule (both are annexed to the
Notice published pursuant to Clause 4 of the Thirteenth Schedule) and the draft Constituency Plan which are opened for
inspection from 5 January 2015 up to and including 4 February 2015 at the
places specified in the Thirteenth Schedule annexed to the Notice
published pursuant to Clause 4 of the
Thirteenth Schedule.
5. There is a great discrepancies in the Second Schedule
that was gazette and “published” in the New Sarawak Tribune and “Utusan Sarawak” newspapers, the "Notice under
section 4 of Part II of the Thirteenth
Schedule to the Federal Constitution" the “Proposed Recommendation for Federal and State
Constituencies in the State of Sarawak as Reviewed by the Election Commission
in 2014” dated and/or gazette on 23rd
December 2014. Signed by Datuk Haji Abdul Ghani Bin Salleh and dated 23
December 2014 and the one that is shown at the office counter of the Pejabat
Pilihan Raya Negeri Sarawak entitled
“Syor-syor yang dicadangkan bagi Bahagian- Bahagian Pilihan Raya Persekutuan
dan Negeri di dalam Negeri Sarawak sebagai mana yang telah Dikaji Semula oleh
Suruhanjaya Pilihan Raya dalam Tahun
2014”.
6. The Notice and specified Schedules mentioned in
paragraph 4 and 5 herein above do not
show the effect of the Respondent Election
Commission’s proposed recommendations and or provide Detailed Particulars of the Proposed Recommendations.
7. Further, the said Notice and specified Schedules mentioned
in paragraphs 4 and 5 hereinabove, in providing the effect of the Respondent’s Election Commission’s proposed
recommendation and or provided Detailed
Particulars of the Proposed
Recommendation, are short of those published effect and or Detailed Particulars of the Proposed
Recommendations provided in the previous
constituencies and State Constituencies delimitation and or Constituencies review exercise which
was commenced on 17 January 2005 and
carried out by the same Respondent Election Commission.
8. There are much discrepancies and doubts in the
detailed particulars revealed by the Respondent
Election Commission.
9. The Respondent Election Commission has neglected,
ignored and or willfully disregarded the importance and significance of the
detailed particulars of the Proposed Recommendations, in consequence thereof, the principles as specified in Clause
2 of the Thirteenth Schedule of the Federal Constitution and required to be
taken into account in dividing any unit of review into constituencies to be
reflected in the detailed particulars of the Proposed Recommendations, are
breached, violated and disregarded without explanation and clarification.
10. Those further and other grounds appearing in the
Statement filed herewith and in the affidavit in support (1) of See Chee How
and the affidavit in support (2) of
Pauls Baya, both affirmed on the 27th day of January 2015 and filed herein
shall be read in support of this Application.
Relief Sought
7. The Applicants sought the following reliefs:
1. A Declaration that the publication and or notification
of the Election Commission purportedly
under Clause (2) of 26 Article 113 of the Federal Constitution to review
the division of the State of Sarawak
into constituencies for the purpose of
elections to the Sarawak State Legislative
Assembly was not in compliance with the provisions contained in the Thirteenth Schedule and is
null, void and of no effect; and/or
alternatively
2. A Declaration that the proposed recommendation of
the Election Commission of Malaysia to
review the division of the State of
Sarawak into Federal Constituencies for the State of Sarawak for the purpose of elections
to the House of Representatives was unconstitutional and is null, void and of no effect;
3. A Declaration that there is serious and considerable
lack of detailed particulars on the proposed recommendations purportedly disclosed and specified in the
First Schedule, Second Schedule (both
are annexed to the Notice published pursuant to Clause 4 of the Thirteenth
Schedule) and the draft Constituency
Plan which are opened for inspection
from 5th January 2015 up to and including 4th
February 2015 at the places specified in the Third Schedule annexed to
the Notice published pursuant to Clause 4
of the Thirteenth Schedule;
4. A Mandatory Order directing that the Election Commission republishes a notice of its
proposed recommendations to review the
division of the State of Sarawak into
constituencies for the purpose of elections to
the Sarawak State Legislative Assembly in full compliance with the provisions contained in
the Thirteenth Schedule; and/or 5
5. Any further or other Orders this Honorable Court may
deem fit and just.
The Parties
8. The 1st Applicant is a registered voter in the electoral
ward of Stampin Parliamentary Constituency and Kota Sentosa State Constituency, in the State of Sarawak cum the
successful candidate for the electoral ward of N.11 Batu Lintang in the Sarawak State Election held in April 2011.
9. The 2nd Applicant, businessman, is a resident in Long
Atip and a registered voter in Long
Atip, Sungai Apoh, Baram in the State of
Sarawak.
10. The Respondent is the Chairman, Election Commission
of Malaysia.
11. Although the application for leave is an ex parte application,
it was served on the Attorney General
Chambers as required under Order 53 rule
3(3) Rules of Court 2012 (“RoC 2012”).
The Senior Federal Counsel was present at the hearing of the leave application to oppose the same.
12. Pursuant to Order 53 rule 8(1) RoC 2012, the learned
State Legal Counsel appeared at the
hearing to watch brief for the State
Legislative Assembly Sarawak and the State Government of Sarawak as they are parties who would be
affected by the outcome of the present application, and to oppose the leave application.
Preliminary Issues
13. In opposing this leave application, the learned
Senior Federal Counsel and the learned
State Legal Counsel raised several
preliminary issues, namely:
a. Locus standi of the 1st and 2nd Applicants.
b. No locus to bring a representative action.
c. The judicial review is premature.
d. The matter is non-justiciable.
Issue (a) : Locus Standi
14. The law on the threshold standing to file judicial
review is now settled after the decision
of the Federal Court’s case of Malaysian
Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor
[2014] 3 MLJ 145. In this case, the Federal Court was posed with a question
regarding the standing of applicant
seeking public law remedies, which reads:
Whether the test of locus standi propounded by the
Supreme Court in Government of Malaysia
v Lim Kit Siang United Engineers (M)
Berhad v Lim Kit Siang [1988] 2 MLJ 12 ie
that an applicant must establish infringement of a private right or the
suffering of special damage still applies to
application for judicial review, and to what extent, in light of the present O 53 r 2(4) of the Rules of
the High Court 1980.
15. After an extensive review of the law in the local and
foreign jurisdiction relating to
judicial review proceedings, the Federal Court cited with approval the decision
of the Court of Appeal in QSR Brands Bhd. v Suruhanjaya Sekuriti & Anor
[2006] 3 MLJ 164, and held:
It is to rid this dichotomous approach which often produced injustice that O 53 in its present
form was introduced. There is a single
test of threshold locus standi for all the remedies that are available under
the order. It is that the applicant should be "adversely affected".
The phrase calls for a flexible
approach. It is for the applicant to
show that he falls within the factual spectrum that is covered by the words
"adversely affected".
16. The Federal Court held:
"[57] In view of the foregoing we are of the view
that the 6 view expressed by the Court of Appeal in QSR Brands Bhd. v 7
Suruhanjaya Sekuriti & Anor that the “adversely affected” test was a single test for all the remedies
provided for under O 53 of the RHC is to
be preferred. Hence the answer to the
question posed in this appeal has to be in the negative.”
17. The Court of Appeal in QSR Brands Bhd, supra,
described both spectrum that is covered
by the words “adversely affected” thus
[cited by the Federal Court in paragraph 48 of the Report]:
"[16] ….. At one end of the spectrum are cases where
the particular applicant has an obviously sufficient personal interest in the legality of the action
impugned. See, Finlay v Canada [1986] 33
DLR 421. This includes cases where the complaint is that a fundamental right
such as the right to life or personal
liberty or property in the widest sense (see, Tan Tek Seng v Suruhanjava
Perkhidmatan Pendidikan [1996] 2 22 CLJ 771) has been or is being or is about
to be infringed. In all such cases, the court must, ex debito justitiae, grant
the applicant threshold standing. See,
for example, Thorson v Attorney General
of Canada [1975] 1 SCR 138.
[17] At the other end of the spectrum are cases where the
nexus between the applicant and the legality of the action under challenge is
so tenuous that the court may be entitled to disregard it as de minimis. In the
middle of the spectrum are cases which
are in the nature of a public interest litigation. The test for determining
whether an application is a public interest litigation is that laid down by the
Supreme Court of India in Malik Brothers
v Narendra Dadhich AIR 1999 SC 3211, where, when granting leave, it was said:
[P]ublic interest litigation is usually entertained
by a court for the purpose of redressing
public injury, enforcing public duty,
protecting social rights and vindicating public interest. The real purpose
of entertaining such application is the
vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The
directions and commands issued by the
courts of law in public interest
litigation are for the betterment of the
society at large and not for benefiting any individual. But if the Court finds that in
the garb of a public interest litigation
actually an individual's interest is
sought to be carried out or protected, it
would be bounden duty of the court not to entertain such petition as otherwise the very purpose
of innovation of public interest litigation
will be frustrated.
18. It is to be noted that the phrase “adversely
affected” calls for a flexible approach.
19. Order 53 rule 2(4) of Rules of Court 2012 [RoC 2012]
states:
(4) Any person who is adversely affected by the decision,
action or omission in relation to the exercise of the public duty or function shall be entitled to make the
application.
20. From the title of the application, the Applicants are
making the application for themselves
and on behalf of “others being the registered voters in the State of Sarawak
having an interest in the proposed recommendations of the Election Commission
of Malaysia to review the division of the State of Sarawak into constituencies
for the purpose of elections to the Sarawak State Legislative Assembly.”
21. The Applicants’ stance is that they are the persons
who are “adversely affected by the
decision, action or omission” of the
Respondent in their “Proposed Recommendation for Federal and State Constituencies in the State of
Sarawak as Reviewed by the Election
Commission in 2014” dated and/or gazetted on 23rd December 2014, citing Order
53 rule 2(4) RoC 2012.
22. In challenging the standing of the Applicants, the
learned Senior Federal Counsel and the learned State Legal Counsel submitted as follows:
a. That the Applicants have no standing to act for
themselves and/or acting in representative capacity. It was contended that the word “any person” in Order 53 rule
2(4) must be read in harmony with
section of the Thirteenth Schedule of
the Federal Constitution. That means the Applicants must be a person within the group of 100
persons from an affected constituency
who is entitled, under the said section
5, to lodge objection to the Respondent’s proposal for review of the State Constituencies. It
was submitted that the RoC 2012 cannot
confer rights on a person when no such rights are specifically given to him by
the Federal Constitution, the supreme law of the country.
b. Although the Applicants, who are registered voters
from two different state constituencies, may have personal or individual interests in any change which may
be made to their respective constituencies, it is insufficient for them to be
considered as persons “adversely affected” under Order 5 53 rule 2(4) Rules of
Court 2012, as a minimum of 100 voters in each constituency are needed to lodge
an objection. There is no evidence that
there are 99 other registered voters in the current electoral rolls in their respective constituencies who would like to
join them in making objections.
c. Order 53 Rules of Court 2012, which is specifically
drafted for judicial review, does not provide for representative action. As such, the general
rules relating to representative action or representative capacity do not apply
to judicial review proceeding which is governed by Order 53.
d. The Applicants are not qualified to act on behalf of
the rest of the voters in Sarawak as the
other registered voters, whom they
claimed to represent, have not been shown to
be persons whose names are in the current electoral rolls 21 for the
constituencies so affected. Further, the Applicants have not shown that consent has been given by
those registered voters whom they claim
to represent. Thus, the Applicants are
mere “busy bodies” and are not persons
adversely affected by the Notice under any of the three “factual spectrums” covered by the words
“adversely affected” as described by the Court of Appeal in QSR Brands Bhd. v
Suruhanjaya Sekuriti & Anor, supra.
e. The Applicants are trying to circumvent their lack of
capacity to raise objection on the proposed recommendation by coming to Court to
apply for judicial review.
f. The Applicants have not shown that because of the “defective” Notice or the "wrongful
publication", any of the registered
voters from the constituencies so affected
had not been able to exercise their right to raise objections under section 5 of the Thirteenth Schedule.
In fact, objections have been submitted by those who qualify to raise objection to the Respondent’s
proposals.
g. The two affidavits in support filed by the Applicants
do not show, explain or provide any
proof that their rights had been
“abridged, restricted and/or impaired” by the
purported irregular or invalid Notice of the Respondent or its
publication in the New Sarawak Tribune and Utusan Sarawak. In fact, the Applicants were fully
aware of the Respondent’s recommendations and that they are entitled to object to the Proposed Recommendation in
accordance with section 5 of Thirteenth Schedule of the Federal Constitution.
In other words, they have not been adversely affected by the act or omission of
the Respondent in the publication of the Notice, and hence lacks the capacity to make this application
to the Court.
23. For ease of reference, section 5 of the Thirteenth
Schedule of the Federal Constitution is reproduced, and it states:
5. Where, on the publication of the notice under section
4 of a proposed recommendation of the Election Commission for the alteration of any constituencies, the
Commission receive any representation objecting to the proposed recommendation from –
(a) the State Government or any local authority whose area is wholly or partly comprised in
the 9 constituencies affected by the recommendation; or
(b) a body of one hundred or more persons whose names are shown on the current electoral
rolls of the 12 constituencies in question, the Commission shall cause a local
enquiry to be held in respect of those constituencies.
24. With respect, I do not agree that Rule 2(4) of Order
53 RoC 2012 should be read with section
5 of the Thirteenth Schedule. I say so
because the Applicants are not challenging the Proposed Recommendation, in
which case the Applicant would have to bring themselves within the group of 100
persons as provided for under section 5
of the Thirteenth Schedule.
25. The complaints of the Applicants are in relation to
the manner of the publication of the Notice of the Proposed Recommendation and/or inadequate/insufficient
information available on the effect of
the delimitation exercise on the registered voters in Sarawak in accordance
with sections 2, 4 and 5 of the Thirteenth Schedule of the Federal
Constitution.
Manner of Publication of the Notice
26. The 1st Applicant averred in the Affidavit In Support
(1) that from the various calls he had
made to his acquaintances and contacts
in rural Sarawak, he verily believed that the many community villages, longhouses and kampongs in
many state constituencies such as the proposed Murum, Ba Kelalan, Belawai
[proposed Kuala Rajang], proposed Selirik, Sebangan etc. do not have even a copy of the New
Sarawak Tribune and Utusan Sarawak
newspaper circulating in their area.
27. The 1st Applicant averred that he verily believed
that the majority of the voters and
populace in the rural communities in Sarawak had no knowledge of the proposed
recommendation for the delineation of
Federal and State Constituencies in the State of Sarawak as reviewed by the
Respondent in 2014. There are substantial number of voters in the rural
communities, vicinities and polling
districts but there had been no notice
from the district or sub-district officers informing them of the proposed
recommendation by the Respondent.
28. The 2nd Applicant averred in the Affidavit In Support
(2) that on 5th January 2015 at noon, he checked with all the shops selling newspapers in Long Lama and found that
there was no one selling or distributing the New Sarawak Tribune and Utusan
Sarawak newspaper in Long Lama. The Borneo Post and the Utusan Borneo are the
only English and Bahasa Malaysia
language newspaper sold and distributed in Long
Lama.
29. The 2nd Applicant averred that he has also checked
with all the shops selling newspapers in Marudi on the same day at late
afternoon, and was unable to buy a copy of the New Sarawak Tribune and Utusan Sarawak which was said to
have published the Notice of Proposed
Recommendation.
30. The 2nd Applicant averred that he was told that all
the major Chinese language newspapers
are sold in Marudi. For the English language and Bahasa Malaysia newspapers,
only Borneo Post and Utusan Borneo are widely sold and distributed in Marudi. 5
copies of the New Sarawak Tribune will usually arrive a day after their
publication and they are distributed directly to the government offices through
one of the bookshops in Marudi. There
are usually 20 – 40 copies of the Bahasa
Malaysia language Utusan Sarawak on sale at the bookshop in Marudi.
31. The 2nd Applicant averred that he is familiar with
all the rural centers in Baram. To his knowledge there are no private transporters that convey goods and passengers
from Miri to Long San and Lio Matu everyday or every other day. There is no shop in Long San and Lio Matu selling
newspapers.
32. It is evidently clear from the Affidavit In Support
(1) and Affidavit In Support (2) that the
Applicants’ complaints are that they are not raising issue with the Proposed Recommendation,
but rather they are saying that the publication of the Notice of the Proposed
Recommendation has contravened the
provisions of the Thirteenth Schedule.
Insufficient or Inadequate Information on the Effect of
the Proposed Recommendation
33. The Notice in Exhibit SCH-2 shows:
a. At paragraph 3, that the total number of voters in
the Electoral Rolls which was endorsed
and gazetted on 30th April 2014 was used for the purpose of the review of the
delimitation of the Federal and State Constituencies in the State of Sarawak.
b. At paragraph 4, that the detailed particulars of
the proposed recommendations for the
State of Sarawak regarding the new Federal and State Constituencies and amendments to the existing names of the
Federal and State Constituencies in the State of Sarawak are specified in
the First Schedule.
c. At paragraph 5, that the detailed particulars of
the proposed recommendations regarding
the overall Federal and State
Constituencies, in the State of Sarawak, are specified in the Second Schedule.
d. At paragraph 6, that a copy of the proposed recommendations together with the draft
Constituencies Plan for the State of
Sarawak may be inspected from 5th
January 2015 up to and including 4th February 2015 during normal office hours at the places specified
in the Third Schedule.
34. The 1st Applicant averred that the office copy
entitled “Syor- syor yang dicadangkan bagi Bahagian-Bahagian Pilihan Raya Persekutuan dan Negeri di dalam Negeri Sarawak
sebagai
mana yang telah Dikaji Semula oleh Suruhanjaya Pilihan
Raya 1 dalam Tahun 2014” (‘“Proposed Recommendation for Federal and State Constituencies in the State of
Sarawak as Reviewed by the Election
Commission in 2014” dated and/or gazetted on 23rd December 2014") [Exhibit
SCH- 4] contains the purported Notice, the First Schedule, the Second Schedule
and the Third Schedule as in Exhibit SCH-2.
35. The Second Schedule that was gazetted and published
in the 8 New Sarawak Tribune and Utusan Sarawak newspaper as shown in Exhibit SCH-2, only displayed and
listed the total number of voters in
each State and Federal Constituencies, whereas the Second Schedule in Exhibit
SCH-4 displayed and listed the total
number of voters in the respective polling districts in each State and Federal
Constituencies in the State of Sarawak.
36. By failing to publish the proposed electoral roll of
the affected voters in the Notice shown in Exhibit SCH-2 and the office copy of the Proposed Recommendation Exhibit
SCH-4, the public would not know whether
they are affected by the Proposed
Recommendation.
37. Further, without preparation of the proposed
electoral rolls, the polling district on
the map and the administrative, physical and
infrastructural boundaries on the draft Constituencies Plan for the State of Sarawak prepared and proposed by
the Respondent, the voters would not know how they would be affected by
the Proposed Recommendation.
38. As such, contended the Applicants, Exhibit SCH-2 does
not show the effect of the Respondent’s
Proposed Recommendation and even Exhibit
SCH-4 does not provide Detailed Particulars of the Proposed Recommendation.
39. It is clear from the averment of the Applicants in
their respective Affidavits In Support
that their complaint is in relation to
the manner of publication of the Notice of Proposed Recommendation and/or non
disclosure of detailed information on
the effect of the Proposed Recommendation. As such, the Applicants do not need to bring themselves
within the group of 100 persons as provided for under section 5 of the
Thirteenth Schedule.
Whether the Applicants fall within the Factual Spectrum covered by the words ‘adversely affected"
1st Applicant
40. In my view, the 1st Applicant as a registered voter
in the electoral ward of Stampin Parliamentary Constituency and Kota Sentosa
State constituency, Sarawak, and as an elected
assemblyman of the State constituency of N. 11 Batu Lintang, has personal interest in the effect of the
Proposed Recommendation and that his
rights has been affected by the
non-disclosure of and/or insufficient detailed particulars of the Proposed Recommendation.
41. The 1st Applicant averred that from the search
conducted on the website of the
Respondent, the 1st Applicant found himself to be a voter at the polling
districts of Pasar Maong and locality of
Jalan Tai Shin Jar. It is proposed that the polling districts of Pasar Maong be moved to a new state
constituency of “Batu Kitang” but it is not known if a voter in the locality of
Jalan Tai Shin Jar would be moved.
42. The 1st Applicant averred that for a registered voter
to know whether they are negatively affected by the Proposed Recommendation, they need to know firstly,
which constituency they are placed within
and secondly, who they are sharing their constituency with.
43. So far, the Respondent only made available two pieces
of information as “Detailed Particulars of the Proposed Recommendation”
available to the public, namely, (1) a draft Constituencies Plan for the State of Sarawak
as mentioned in paragraph 6 of the
Notice being proposed sub-division of 31 parliamentary constituencies and 82 state
constituencies and (2), the list of electorate breakdown by parliamentary
constituency, 15 state constituency and polling districts as shown in Exhibits
SCH-2 and SCH-4. Neither of them gave any information to the 1st Appellant as to whether a voter in the
locality of Jalan Tai Shin Jar would be moved and who he would be sharing
the constituency with. As such, the 1st
Applicant’s right had been “abridged, restricted
and/or impaired” by the purported
irregular or invalid Notice of the Respondent.
44. The 1st Applicant averred that three polling
districts with 6,120 voters are proposed to be removed from the state
constituency 24 of N.11 Batu Lintang to N. 14 Batu Kawah, yet there is no
indication in Exhibits SCH-2 and SCH-4 to that effect. In the polling district of RPR Batu Kawah, there
were 1,675 voters in the Electoral Rolls gazetted on 30th April 2014 ["the
2014 1 Electoral Rolls"]. However, the number of voters listed under the polling district of the proposed RPR Batu
Kawah [at page 17 Exhibit SCH-4] is listed as having only 204 voters. For two
other polling districts being moved from the constituency of Batu Lintang to RPR Batu Kawah, namely
“Maong” and “Nanas Pisang”, they are
having 1,570 and 2,986 voters in the 2014 Electoral Rolls, but the figures in
the Proposed Recommendation for RPR Batu Kawah shows 1,577 and 2,021. There is no explanation as to the missing
voters. Surely, as the elected Assemblyman for N.11 Batu Lintang, the 1st
Applicant has legitimate interest to know the effect of Proposed Recommendation when it affected his state
constituency for any unaccounted voters would thus have adversely affected him.
2nd Applicant
45. The 2nd Applicant, a businessman from Baram, is from
Telang Usang State Constituency and Parliamentary Constituency of Baram. The
Proposed Recommendation had affected the said two Constituencies in that:
a. There is a proposed new State Constituency of Long
Lama which is made up of voters from 3
polling districts [Tutoh, Long Lama and Apoh] within the existing State Constituency of Telang Usang.
b. The existing Long Peluan polling locality within the
Lio Matu polling district is proposed to
be a new polling district by itself but with polling localities which are assumed to be from Telang Usang State
Constituency
c. 5 polling districts [Bario, Pe’lungan, Dano, Remudu
and Lellang] from the existing state constituency of Ba’kelalan are proposed to be included into the proposed
Long Lama state constituency;
d. 2 polling districts [Lubok Nibong and Puyut] are
proposed to be taken out from the existing state constituency of Telang Usang
and are to be moved to the existing State Constituency of Marudi.
46. The 2nd Applicant averred that from a copy of Exhibit
SCH-4 9 that he downloaded from the Respondent’s official website, he found that Long Peluan is now a new polling
district in the proposed new state constituency of Long Lama, at page 71
of Exhibit SCH-4, having 483 voters. He
was informed by the 1st Applicant that
Long Peluan has been a “locality” and not
“polling district” and it has only 69 voters, as shown in the 2014 Electoral Rolls.
47. The 2nd Applicant averred that he would not be able
to know where the Respondent has gone
wrong because there are just not enough detailed particulars in Exhibit SCH-4
for anyone to know why there is such
drastic discrepancies, considering the
fact that the new state constituency of Long Lama has only 8,057 votes. Thus, averred the 2nd Applicant,
his rights has been abridged, restricted
and/or impaired by the Respondent’s
manner of publishing the Notice and the omission to disclose the detailed particulars of the Proposed
Recommendation.
48. In my view, both the Applicants have shown that they
have personal interest within the factual spectrum covered by the words
‘adversely affected’ in Order 53 RoC 2012 that gives them a standing before the
Court by themselves.
Issue (b) : Representative Action
49. Learned State Legal Counsel submitted that Order 15
Rules of 4 Court 2012 ["RoC 2012"] does not apply to judicial review application under Order 53 RoC 2012, citing
Ambiga Sreenevasan v Ketua Pengarah Immigresen Malaysia & Ors 7 [2012] CLJ 170 and Majlis Agama Islam Selangor v Bong
Boon Chuen [2009] 6 CLJ 405.
50. The 1st Applicant submitted – which, I concur –
that publication and/or disclosure of
detailed particulars of the Proposed
Recommendation is integral to the public duty/function of the Respondent [more will be
discussed below].
51. It is amply clear from reading the facts presented in
the application that this is a public interest litigation as the Applicants are enforcing the public function
of the Respondent to ensure that the publication of the Notice of the Proposed Recommendation must be in compliance with
section 4 of the Thirteenth Schedule.
Any omission or action in the publication
of the Notice which contravened section 4 of the Thirteenth Schedule
impinges on the fundamental rights of the voter to be informed, firstly, of the
Proposed Recommendation and the effect
of the Proposed Recommendation so that they can make informed decision whether
or not to make representation objecting
to the Proposed Recommendation.
52. As the present application falls within the middle of
the factual spectrum covered by the adversely affected test, it is
distinguishable from Ambiga Sreenevasan case, supra, and Majlis Agama Islam case, supra.
53. It is also my view that it is not necessary for the
Applicants to identify the registered
voters of the State of Sarawak. Suffice
that they are acting for voters who have an interest in the Proposed Recommendation.
54. The learned State Legal Counsel submitted that the
Court can take judicial notice that the Respondent has received representation objecting to the Proposed
Recommendation, and it is in the
interest of the public that inquiry be conducted without interference.
55. I am of the view that it is immaterial that the Respondent
had already received representation objecting to the Proposed Recommendation. What is pertinent is to
understand that the rationale of section
4 of the Thirteenth Schedule is to bring the
notice of the proposed recommendation to the attention of the voters within the constituency and to notify
them of the effect of the proposed
recommendation. Every voter has a legitimate
interest to be thus informed. The detailed information of the Proposed Recommendation must help to inform
the voters of how they are affected and
for them to participate in the
delimitation exercise. So when it is said that the Notice that has contravened section 4 of the Thirteenth
Schedule, the effect of that deprivation
is that the right of voters who are interested in the Proposed Recommendation had been
adversely affected as being abridged, restricted and impaired by the irregular
or invalid Notice. \
Issue (c): Whether Action is Premature?
56. The learned Senior Federal Counsel submitted that a
notice is not a decision within the meaning of Order 53 rule 1(4) RoC 2012 and
that the Applicants have jumped the gun by filing the present application instead of going through
the due process of making representation objecting to the proposed recommendation as provided for under section 5
Part II of Thirteenth Schedule. They have come to Court to quash the Notice [which would expire on 4th February
2015].
57. In my view, failure on the part of the Respondent who
is charged with public function to
effect publication of the Notice in
accordance with section 4 of the Thirteenth Schedule falls within the meaning
of “omission” or “action” of rule 1(4) of Order 53 RoC 2012.
58. As such, the Applicants are not precluded at this
stage to file the present leave application. Accordingly, this preliminary objection must fail. \
Issue (d): Non-justiciability
59. It is the common contention of the Learned Senior
Federal Counsel and the learned State
Legal Counsel that the Court has no jurisdiction in this matter as the Respondent
is carrying out this exercise of
delimitation of constituencies in consequence
of the law passed by the Legislative Assembly of the State of Sarawak. Thus, the delimitation of
constituencies is a constitutional
process for the Legislature and under the direct oversight of the Legislature.
Hence, on the doctrine of separation of
power, the Court should not interfere.
60. The learned State Legal Counsel submitted that the
Notice issued by the Respondent is part of the process for the delimitation of
the constituencies in Sarawak and not an isolated phase of the whole process.
The Respondent shall submit a report of
the Proposed Recommendation to the Prime Minister and thereafter to Parliament.
It is the Parliament which will
ultimately decide whether to accept or reject the report. Therefore the whole process is under the
purview of the Parliament and not the
Court.
61. The learned State Legal Counsel contended that on the
doctrine of separation of power, a
decision made by the Parliament is not
justiciable or cannot be subjected to intervention by the Court. To support the contention, the following
cases were cited:
a. Ghapur Hj. Salleh v Tun Datuk Hj Mohd Adnan
Robert TYT Yang Di-Pertua Negeri Sabah
& Ors [1988] 1 CLJ 19 Rep 317: In this cited case the plaintiff applied for
an interim injunction against the 3rd to 7th defendants, who were members of Election Commission, to
restrain them from acting under Article 113 of the Federal Constitution until
the hearing and disposal of the main summons
brought by the Plaintiff; the Court refused to give injunction against Election Commission
because they were executing a Constitutional function.
b. Dr Michael Jayakumar Davaraj v Peguam Negara Malaysia
[2013] 2 CLJ 1009, where the Federal Court held that it would not adjudicate on
matters which relate to policies of the Executive.
c. Members of Commission of Enquiry v Tun Dato Seri Ahmad Fairuz [2011] 6 MLJ 490 where the
Federal Court held that the Commission of Enquiry was a public authority but
was not a decision making body. The
Commission did not make legal decision. The Commission's report consisted of
findings and recommendations of the
Commission on the terms of reference
entrusted upon them. Such findings were not
reviewable as the respondents' legal rights were not directly affected by the findings or that
they have been deprived of the benefit that they were permitted to enjoy. Clearly, the Commission's findings had
not affected their legal rights and it,
therefore, was not amenable to judicial
review. Thus, the findings and
recommendations of the Commission did not come within the ambit of O 53 of the RHC 1980.
d. Yang Di Pertua Dewan Rakyat v Gobind Singh Deo [2014] 9 CLJ 577 FC.
62. The 1st Applicant in his well researched submission
cited Tengku Muhammad Fakhry Petra Ibni
Sultan Ismail Petra v 24 Yang Maha Mulia Pemangku Raja Kelantan & Ors
[2011] 1 25 MLJ 128, where Justice Mohamad Ariff [as he then was], in the discourse on the general principle of
justiciability, held:
[11] A good
definition of “justiciability” can also be found in Chris Finn, The Concept of
“Justiciability” in Administrative Law in Groves & Lee, Australian
Administrative law [2007]:
The term ‘justiciability’ refers to the suitability
for, or amenability to, judicial review
of a particular administrative decision
or class of decisions. The term derives
from the common law and reflects a
series of self-imposed judicial restraints, themselves founded in a view
as to the appropriate constitutional
balance between the respective roles of
the executive and the judiciary. Thus, a matter may be deemed “non-justiciable” by a Court
which feels that its resolution either
is beyond the institutional competence of the Court or would involve stepping
outside its appropriate constitutional
role.”
63. The 1st Applicant submitted – which, I concur – that
what can be distilled from the above
judicial pronouncement is that the concept of justiciability is a series of
self-imposed judicial restraint by the
Courts in not exercising its supervisory jurisdiction when the subject matter of the
application is beyond the competence of the Courts. In other words, the underlying principle of this concept is
restraint which is self- imposed by the Court. This would concern a
deliberation of the subject matter at
hand in order for the Court to decide for itself whether the subject matter is
justiciable. This principle does not, as
submitted by the learned State Legal Counsel, operate automatically to oust the Court’s
interference whenever a matter is within the purview of the other organs of government, be it Legislature or the
Executive.
64. In Yang Dipertua, Dewan Rakyat & Ors v Gobind
Singh Deo [2014] 6 MLJ 812, the Federal Court had held that even in such matters
as parliamentary privilege, the Courts have always subjected the privilege to
judicial scrutiny so as to maintain checks and balances within the system of
the government.
65. This concept of whether or not a subject matter is
amenable to judicial review is dependent on the facts of each case is
reiterated in Dr Michael Jeyakumar Devaraj v Peguam Negara Malaysia [2013] MLJU
where Raus Sharif PCA [as he then was]
states:
[16] We have no hesitation in accepting that the Executive’s discretion, whether by statute or
prerogative is amenable to judicial review.
However, whether such discretion is
amenable to judicial review is dependent on the facts of each case. (see R.
Rama Chandran (supra), Kumpulan Perangsang
Bhd. (Supra) and Petrolium Nasional Bhd. v Nik Ramli Nik Hassan [2003] 4 CLJ
625. It was generally held in those cases
that not every decision of the Executive
could be subjected to judicial review” .
66. For lack of local authority on the matter at hand,
given that it is the first time the
regularity, propriety and correctness of the principles and issues enunciated in section 2
of the Thirteenth Schedule of the
Federal Constitution are litigated on the shore of Malaysia, the 1st Applicant referred to an
American case of Baker v Carr 369 U.S.
186 (1962), which showed that such principles and issues enunciated in section 2
of the Federal Constitution are
justiciable.
67. In Baker v Carr, supra, the Supreme Court in the
United States was asked to consider a suit in which the appellants “… on behalf
of themselves and others similarly situated, to redress the alleged deprivation
of their federal constitutional rights by legislation classifying voters with respect to
representation in the General Assembly.
They alleged that, by means of a 1901 Statue of Tennessee arbitrarily and
capriciously apportioning the seats in
the General Assembly among the State’s 95 counties, and a failure to reapportion
them subsequently notwithstanding substantial growth and redistribution of the State’s
population, they suffer a “debasement of their votes” and were thereby denied the equal protection
of the laws guaranteed them by the Fourteenth
Amendment. They sought, inter alia, a
declaratory judgment that the 1901 Statute is unconstitutional and an injunction restraining
certain state officers from conducting
any further elections under it. The District Court dismissed the complaint on
the grounds that it lacked jurisdiction of the subject matter and that no claim
was stated upon which relief could be
granted.”
68. The Supreme Court in the above cited case held that
on the facts of the case and the law in issue, the complainant’s allegations of a denial of equal protection
presented a justiciable constitutional cause
of action upon which the appellants are
entitled to a trial and a decision.
69. The Supreme Court held that “the non justiciability
of a political question is primarily a function
of the separation of power. Much confusion results from the capacity of the “political
question” label to obscure the need for case-by-case inquiry. Deciding whether a
matter has in any measure been committed
by the Constitution to another branch of government, or whether the action of that branch exceeds
whatever authority has been committed,
is itself a delicate exercise in constitutional interpretation, and is the
responsibility of this Court as ultimate
interpreter of the Constitution".
70. In a Privy Council case of Bobb & Anor v Manning
[Trinidad and Tobago] [2006] UPC 22, at
page 8, paragraph 12 of the judgment, the court quoted the submission of the
learned counsel for the appellant in which it was stated:
"12. “Secondly, Mr Maharaj urged that the
courts should not abdicate their
important function of constitutional
adjudication. He relied in particular on the brave and memorable observations
of Bhagwati J in the Supreme Court of
India in State of Rajasthan v Union of
India AIR [1977] SC 1361 at 1413-1414, para 143:
“This Court is the ultimate interpreter of the Constitution and to this Court is assigned
the delicate task of determining what is the power conferred on each branch of Government,
whether it is limited, and if so, what
are the limits and whether any action of
that branch transgresses such limits. It
is for this Court to uphold the constitutional values and to enforce the constitutional limitations.
That is the essence of the rule of law. To quote the words of Mr. Justice Brennan in Baker v Carr [369 US
186, 26 211 (1962)] ‘Deciding whether a matter has in any measure been
committed by the Constitution to another branch of Government or whether the action of
that branch exceeds whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation and is a responsibility of this Court
as ultimate interpreter of the Constitution.”
71. The above cases referred reiterates that merely
because the Constitution has conferred power on a particular branch of the
government, it does not automatically oust the Court’s jurisdiction and render the subject matter
not amenable to the Court’s interference. The Court must in the exercise of its function as constitutional adjudicator should
not shrink from its duty to determine “what is the power conferred on each
branch of the government, whether it is limited, and if so, what are the limits and whether any action of that branch
transgresses such limit.”
72. It should be noted that the present leave application
is not an application to review the function of the Legislature or Executive. This leave application is seeking
a judicial review of the action and/or omission on the part of the Respondent
in publishing the Notice of the Proposed Recommendation in accordance with section 4 of the Thirteenth
Schedule.
73. The Respondent is constituted in accordance with
Article 114 under Part VIII of the Federal Constitution which relates to election. They are empowered by Article 113
to review the division of the Federation
and the State into constituencies and
recommend such changes as they may think necessary. Article 116 provides that for the election of members
to the House of Representatives a unit of review shall be divided into
Constituencies in accordance with the provisions contained in the Thirteenth Schedule. Article 117 provides
similar provision as Article 116 in
respect of the State Constituency. Section 2 of the Thirteenth Schedule laid
down the principles that shall, as far as possible, be taken into account in
dividing any unit of review into constituencies pursuant to the provisions of
Articles 116 and 117.
74. Part II of the Thirteenth Schedule laid down the
procedure for delimitation of constituency. Section 4 thereof provides:
4. Where the Election Commission have provisionally determined to make recommendations under
Clause (2) of Article 113 affecting any
constituency, they shall inform the
Speaker of the House of Representatives and the Prime Minister
accordingly, and shall publish in the Gazette and in at least one newspaper
circulating in the constituency a notice stating -
(a) the effect of their proposed recommendations, and
(except in a case where they propose to recommend that no alteration be made in
respect of the constituency) that a copy
of their recommendations is open to
inspection at a specified place within the constituency; and
(b) that representations with respect to the proposed
recommendations may be made to the within one month after the publication of such
notice, and the Commission shall take into consideration any representations duly made in accordance with
any such notice.
75. A close perusal of the provisions in the Federal
Constitution referred to above clearly laid down the principle which the Respondent
must, as far as possible, take into consideration in the delimitation exercise and the manner in
which notice of proposed delimitation must be published and that the Notice must state the effect of the proposed
recommendation.
76. The Federal Constitution has imposed upon the
Respondent the duty, amongst others, to publish notice of proposed recommendation
in accordance with section 4 of the Thirteenth Schedule. It is amply clear that the publication
of proposed recommendation in accordance
with section 4 of the Thirteenth Schedule is an integral part of the duty or
public function of the Respondent.
77. There is no provision in the Federal Constitution
which expressly provides that there
shall be no challenge against the Respondent who fails to perform this public
duty.
78. No doubt that the review of delimitation exercise is
under the direct supervision and purview of the Legislature and it is the
Parliament who eventually decides whether to accept or reject the report submitted by the Respondent. I am
of the view that until a report is
finalized by the Respondent and submitted to the Prime Minister and thereafter
to Parliament, the Respondent is
discharging its public function, and that publication of the Notice and/or
disclosure of the detailed particulars
showing the effect of the proposed recommendation is an integral part of the
public duty. Thus, the decision, action and omission of the Respondent in relation
to the performance of this aspect of their public function is subject to
judicial review. In other words, the Respondent is not above the law. Hence, this head of preliminary objection must
fail.
Whether the Application is Frivolous?
79. Guided by Tang Kwor Ham & Ors v Pengurusan
Danaharta Nasional Bhd. & Ors [2006]
5 MLJ 60, upon a quick perusal of the materials presented before the Court, I
am of the view that it is not a frivolous application and that it merits
substantive argument.
DECISION
80. For all the reasons stated above. I allow the
application and order that leave be granted as prayed for. There shall be
no order as to costs.
(DATUK YEW JEN
KIE) 16
Judge
Date of Delivery of Judgment: 17.2.2015 19
Date of Hearing: 2.2.2015 21
For the Applicants: Mr. See Chee How
Mr. Desmond Kho
Messrs Baru Bian & Co. Advocates
Kuching
For the Respondents:
For the Attorney General: SFC Mr. Shamsul Bolhassan
SFC Mr. Azizan Bin Md Arshad
Jabatan Peguam Negara Malaysia Sarawak
(Attorney General's Chambers Malaysia), Kuching
For the Sarawak State Datuk J.C. Fong
Legislative Assembly Mr. Talat Mahmood Abdul Rashid
and Mr. Saferi Ali
Sarawak State Government State Attorney General Chambers
[Watching Brief]: Sarawak
Kuching
State Director of Election Datu Hj. Takun Bin Sunggah
Commission: Director
Election Commission of Malaysia
Sarawak Branch
Kuching
Notice: This copy of the Court's Reasons for Judgment is
subject to editorial revision.
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