Appeals Court says notice re-delineating Sarawak electoral boundaries valid

A three-member panel chaired by Justice Datuk Mohd Zawawi Salleh unanimously allowed the EC's appeal to set aside the High Court ruling which had nullified its notice.

Justice Datuk Abdul Rahman Sebli delivered the judgement, ruling that the notice was in accordance with Section 4(a) of 13th Schedule of the Federal Constitution.

He said the EC had disclosed the required details in the notice and the commission was not duty bound to disclose further details than what it had already disclosed.

He said it was factually wrong for the High Court to say that the details of the proposed recommendations had not been disclosed by the EC.

The court however dismissed the cross-appeal brought by the respondents, Batu Lintang assemblyman See Chee How and a voter in Ulu Baram, Pauls Baya, who sought a variation in the High Court's decision delivered on May 15.

The third judge on the panel was Justice Tan Sri Idrus Harun.

In its re-delineation exercise, the EC is seeking to create 11 new constituencies to raise the number of state constituencies in Sarawak from 71 to 82.

On May 15 this year, the High Court in Kuching declared that the EC's notice of its recommendations for the proposed re-delineation exercise lacked details and ordered the EC to republish the notice.

On May 25, High Court judge Yew Jen Kie made an additional order, declaring the EC's notice of delineation null and void after ruling that the notice was not in accordance of the 13th Schedule of the Federal Constitution.

The High Court had allowed the judicial review brought by See and Baya.

In his judgment, Justice Abdul Rahman said there was no question that the EC had acted in bad faith by suppressing information.

He said section 5 (b) of the 13th Schedule prescribed an enquiry procedure which was the proper forum for the respondents to object to the proposed recommendations and not challenge it in the court.

Justice Abdul Rahman said if the court were to decide on the proposed recommendations, it would be usurping the powers of the EC conferred to the commission by the Federal Constitution.

"The procedure prescribed by section 4 (a) read with section 5 (b) of the 13th Schedule does provide for an effective mechanism through which registered voters can ventilate their concerns and oppose to the proposed recommendations and to make counter proposals," he said.

Justice Abdul Rahman said there was a distinction between a requirement to state the effect of a proposed recommendation and a requirement to disclose details of the recommendation, adding that failure to appreciate the distinction could lead to a serious misapprehension of the law.

He said the High Court's construction of section 4 (a) of the 13th Schedule would render meaningless and superfluous the enquiry procedure.

Justice Abdul Rahman said the court did not find that the voters' right to make a representation would be impaired by the EC's failure to state the detailed particulars of the nature mentioned by the High Court judge.

"The respondents' allegation that their right of making a representation has been impaired is unsupported by evidence. The allegation is based purely on their belief," said Justice Abdul Rahman.

The respondents' counsel, Datuk Dr Cyrus Das, informed the court that they would be bringing the matter up to the Federal Court as it was a matter of importance.

He also requested to know at what stage of the process the EC was in the redelination exercise and wanted to know if the EC would be halting the redelineation process pending the respondents' application for leave to appeal.

Das said this was to enable them to decide on the necessity to file a stay application.

Senior federal counsel Azizan Md Arshad told the court that the EC was in the process of preparing the final draft on the redelination for approval and to be submitted to the Prime Minister to be tabled in the Dewan Rakyat.

Justice Mohd Zawawi then requested Azizan to notify the court on the next move to be taken by the EC.

Meanwhile Bersih 2.0 is disappointed with the decision saying it was a great setback to the country’s efforts to correct electoral manipulation.