The move by the Selangor government not to seek the addresses of 136,272 dubious voters that it claimed to be questionable but pressing on for the locality codes and names for 1994 and 2003 had seriously undermined its judicial review application, ruled the Court of Appeal.

This was stated in Justice Abdul Rahman Sebli's written judgment on Selangor government's appeal against the Election Commission to cross-examine its chief, Mohd Hisham Abdullah, and allow the EC's cross appeal to set aside the Kuala Lumpur High Court decision in ordering that it furnishes the locality codes and names of the 136,272 voters.

Justice Abdul Rahman, who was the second judge on the three-member bench that dismissed state government's appeal in July, said the decision made by Selangor to drop its case on having the addresses of 136,272 voters had resulted in its ground to seek judicial review without any leg to stand on.

“In our opinion, the admission by the Selangor government that the addresses of the 136,272 voters were not necessary for the 2016 delimitation exercise undermines the whole substratum of its case that the 2016 delimitation exercise was unlawful for the reason that it was carried out using an electoral roll that did not contain the addresses of the 136,272 voters,” he said in his 38-page written judgment.

The judge said the High Court was in no position to compel the EC to furnish those details for the purpose of discovery.

Justice Abdul Rahman said the missing addresses of the 136,272 voters on the electoral roll was considered a non-issue following the move by the Selangor government to withdraw that application.

“By abandoning its appeal in respect of (having the addresses of the 136,272 voters), the Selangor government must now be taken to accept that these addresses are not necessary for the purposes of the substantive judicial review hearing. In other words, a discovery of the addresses was not necessary.”

“If the addresses of the 136,272 voters are not required for purposes of the judicial review hearing, we do not see how it can be argued at the same hearing that they were necessary for purposes of the 2016 delimitation exercise,” he added.

Thus, Justice Abdul Rahman reasoned, that even if the High Court were to grant the order of mandamus to compel the EC to publish a new thirteenth schedule notice and newly proposed recommendations that are sought, it will not include an order to take into account the correct and updated addresses of the 136,272 voters.

Nothing for court to resolve

The judge further ruled that there was nothing for the court to resolve by way of discovery as the addresses of the 136,272 voters were not needed, the locality codes and names of the 136,272 voters used for the 1994 and 2003 delimitation exercises was not in the EC's possession, and mistakes in changing the localities of some of the voters had been admitted by the EC.

“Given the factual matrix, all that the High Court needs to resolve at the substantive hearing (hearing of the full merits) was purely a question of law - whether the application for judicial review ought to be allowed on the ground that EC acted contrary to law, unconstitutionally, unreasonably and irrationally when it carried out the 2016 delimitation exercise by using an electoral roll that was defective in that it did not contain the addresses of the 136,272 Selangor voters,” he said.

The Selangor government's judicial review application filed last year was seeking to declare the 2016 electoral roll as defective and have a new notice issued as approximately 136,272 voters in Selangor do not have their corresponding addresses. It was granted leave, and subsequently in the hearing of its merits, applied for a discovery of the 136,232 voters.

At the outset of the hearing of the appeal, counsel Ambiga Sreenevasan indicated that they are not going ahead to seek the addresses of the dubious voters but are supporting the High Court's judgment for EC to hand over their locality codes and names.

On dismissing the Selangor government's appeal to cross-examine Hashim, the appellate court judge said the state's complaint against the EC was over the destruction of the addresses and voter registration documentation of the 136,272 voters.

They said it was improper for the EC to have done so, the judge added.

“It was argued that the EC must keep all the historical records or addresses of the voters and that it was incumbent on them to retain copies of the addresses. It was alleged that the EC was not forthcoming on this vital information,” Justice Abdul Rahman added.

“(However) What is clear from the argument is that the application to cross-examine the EC chairperson is grounded on the missing addresses of the 136,272 voters, the same ground that it relied on upon applying for the discovery of the locality codes and locality names of the voters.

Justice Abdul Rahman said the bench had said enough regarding the issue of addresses in dealing with the issue of discovery, but added that the High Court judge was right in disallowing the prayer for cross-examination.

Ambiga told Malaysiakini that they will be appealing against the appellate court's decision to allow EC's appeal against seven voters in Malacca, who were granted leave to challenge the delimitation exercise.