Bersih 2.0, the Coalition for Clean and Fair Elections, said it was “extremely concerned” over how the delineation cases had turned out in the appellate courts.
The steering committee of Bersih 2.0 said in a statement that the Court of Appeal “special panel” judges – namely justices Mohd Zawawi Salleh, Abdul Rahman Sebli, Kamardin Hashim, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim, Idrus Harun, Ahmadi Asnawi and Suraya Othman – had “consistently ruled that the rakyat are unable to challenge the proposals put forward by the EC”.
It said: “This effectively means that the EC has free rein to act contrary to the provisions of the Federal Constitution in each step of the delineation process.
“It is, therefore, necessary to remind the courts and judges of their duty in upholding the Federal Constitution. Voters and the rakyat must have an avenue to challenge unconstitutional actions that go against the principles of free and fair elections.
“Without the judiciary providing this protection, unscrupulous parties, intent on manipulating elections for their own ends, are left free to do so, with no regard for the constitution.”
The statement listed some cases that had been brought against the EC by voters, and the decisions of the judges who had decided on them.
For instance, it said, on Monday, the Court of Appeal allowed the EC’s appeal against an injunction obtained by the Selangor state government, preventing the EC from handing over its final report to the prime minister until the completion of the High Court proceedings.
It added: “This latest decision maintains the EC’s 100% record in the Court of Appeal and Federal Court on delineation cases.”
Another case involved four Johor voters who had been successful in obtaining leave at the High Court to challenge the EC’s redelineation exercise in July, “given the excessive gerrymandering and malapportionment in the proposals”.
The Court of Appeal was due to hear the appeal against the decision to grant leave by the Attorney-General’s Chambers (AGC) on Oct 26.
“The voters subsequently made a strategic decision to discontinue their case in order to prevent the possibility of another unfavourable judgement against voters challenging delineation. This decision to discontinue was communicated to the AGC in advance of the hearing to which the AGC had no objections.
“Senior federal counsel Dato Amarjeet Singh again confirmed to the voters’ counsel before the hearing was due to begin that the AGC would be forced to withdraw their appeal due to the discontinuation.”
However, Bersih 2.0 said, when the voters’ counsel informed the Court of Appeal judges – justices Mohd Zawawi Salleh, Abdul Rahman Sebli and Kamardin Hashim – of the decision to discontinue the action at the High Court, the judges stated they would make a decision regardless.
It said that despite previous assurances, Amarjeet then said his instructions were to proceed with the appeal.
“The judges refused a request for an adjournment to return for oral submissions and decided the written submissions were sufficient to make a decision. The panel then announced their decision to allow the AGC’s appeal and set aside the High Court’s decision to grant leave for judicial review.
“Bersih 2.0 is extremely concerned with how the matter developed, as there is no reason why the Court of Appeal insisted on proceeding with the appeal when the voters, through their counsel, had intimated to the court that they no longer wished to pursue the action at the High Court. This move to make a ruling on a case that will be withdrawn is highly irregular and wrong at law.
“Furthermore, it is clear the Attorney-General’s Chambers misled the voters’ counsel in saying that they would not proceed with the case, but informing the panel of the opposite.”
The statement noted that, to date, seven cases had reached the Court of Appeal or Federal Court, challenging the constitutionality of the Election Commission’s redelineation exercises. This includes cases from Sarawak, Kuala Lumpur, Perak, Malacca, Johor and Selangor.