The Election Commission (EC) has the duty to ensure the voting rights of detainees held under the Internal Security Act are respected, the Kuala Lumpur High Court heard today in an unprecedented application brought by 22 detainees against the government for denying them the right to vote in last year's general elections.

Stating that the ISA detainees' right to vote is sanctioned by the Federal Constitution, lawyer Edmund Bon ( right ) said the EC must make the necessary provisions to ensure that the detainees can cast their votes.

"They have not been charged with any offence nor convicted of any crime nor are they serving imprisonment for any offences or crimes. (This means) they are entitled and registered to vote pursuant to Article 119 of the constitution."

Therefore, he added, the EC is under a duty to make special provisions for detainees under preventive detention to vote.

"The duty rests on the respondents (the EC and the government) to ensure that the detainees right to vote are preserved and to facilitate, by way of making regulations, an effective exercise of those rights," Bon argued.

He submitted that EC had failed to fulfill its duties when it had never considered the position of detainees held under preventive detention laws and how their right to vote are to be protected.

"By failing to provide regulations in law to facilitate the casting of votes by detainees, this amounts to discriminatory and arbitrary practices in contravention of the constitution."

Unprecedented legal action

The group of detainees had filed a legal action against the EC and the government seeking a declaration that their human right to vote under the constitution had been breached.

They are also seeking declarations that the EC had breached their constitutional rights to freedom of expression through balloting and equal protection to the law.

The group - currently detained at the Kamunting Detention Centre in Perak- include suspected Islamic militants Yazid Sufaat and Nik Adli, son of Kelantan Menteri Besar Nik Abdul Aziz Nik Mat. All are allegedly linked with Kumpulan Mujahiddin Malaysia and Jemaah Islamiah.

In his argument, Bon told the court that the detainees had repeatedly notified the EC via letters of their intention to vote in the general elections that was held on March 21, 2004.

"The applicants reminded the respondent through three letters dated March 15, 17 and 20, 2004 of their right to vote and their intention to vote and for the respondent to facilitate the casting of their votes during the elections."

However, he said, a decision was made by the EC that it was under no duty to make provisions for the detainees to cast their votes on polling day.

"This decision amounted to a prohibition and/or prevention, and/or denial of the applicants' right to vote pursuant to the constitution."

Award compensation

Bon urged the court to dismiss the EC's explanation of 'administrative difficulty' for its failure to make the necessary preparations to allow the detainees to cast their votes.

"Administrative difficulty is not a reason to bar prisoners from exercising their rights to votes," he said.

He urged the court to consider awarding damages and compensation to the detainees because the decision not to allow them to vote had 'effectively rendered their rights illusory'.

"Damages and compensation are payable when constitutional rights have been breached. We don't intend to propose how much the court should give but we hope the court will consider this."

Justice Raus Sharif deferred the hearing to Sept 21 to hear replies from the EC and the government.