A three-member bench, chaired by Idrus Harun, in dismissing the state’s appeal, said the judges were satisfied that the High Court did not commit any error in refusing leave.
“There is no merit in the appeal and the order of the High Court is affirmed,” said Idrus, who sat with Justices Zaleha Yusof and Kamardin Hashim.
The Penang government, which filed the action last June 5, sought a declaration that the recommendations submitted by the EC on March 8 were invalid as they violated Article 113 (6) of the Federal Constitution.
It also sought a declaration that the electoral roll used in the redelineation exercise was not the latest and that it lacked details for voters, the local authorities and the state government to challenge it.
The state is seeking a certiorari order for the EC’s recommendations to be quashed and the 2016 electoral roll to be revoked.
It also sought a mandamus order for the EC to draw up fresh proposals.
However, on Nov 20, High Court judge Hadhariah Syed Ismail, refused the state government the leave that it sought to bring the complaints for hearing.
Today, lawyer Chan Kok Keong said the courts have additional powers to check on illegality and correct any injustice with regard to complaints against the EC in carrying out the redelineation exercise.
“The law is that if the EC acts contrary to the Federal Constitution in the exercise of its powers, then the courts can examine the legality of the conduct.
“If there is either illegality in the way in which the power is exercised or any injustice has resulted because of the exercise of its powers, the courts can issue the appropriate order to compel the EC to act in accordance with the law,” he said.
Chan said the High Court had overlooked the wide powers conferred on the courts by Paragraph 1 of the Courts of Judicature Act 1964, which was an additional power to the other powers a court already had.
Counsel Leong Cheok Peng, who assisted Chan, said the High Court judge should have automatically granted leave as the state was raising serious constitutional issues.
“The courts below should have performed the role as guarantor and protector of our constitution and the citizen’s constitutional rights, and proceeded to grant leave to the state,” he said.
Government lawyer Amarjeet Singh submitted that this bench was bound by the Federal Court ruling on Monday that the EC’s proposals were not subject to judicial scrutiny when the body conducted the delineation exercise.
A three-man bench, chaired by Chief Justice Raus Sharif, had 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.
Raus said the bench decided the EC had complied with the provisions in the 13th Schedule of the constitution in conducting the redelineation proposals.
“The EC’s recommendations are mere action and do not bind parties. So, its proposal is not amenable to judicial review,” he said.
He said the constitution only entrusted the Dewan Rakyat to decide on EC’s proposal and the judiciary could not usurp the functions of the executive and legislature, as mandated by the constitution.
Leong later told reporters he would seek instruction from the state whether to file an appeal in the Federal Court.