Electoral watchdog Bersih has expressed concern over the Court of Appeal decision to proceed with a challenge against the Election Commission’s (EC) redelineation exercise brought by four Johor voters.

This is because the voters had earlier decided, for strategic reasons, to discontinue their case and this decision has been communicated to the Attorney-General’s Chambers (AGC).

“Bersih is extremely concerned about how the matter has developed, as there is no reason for the Court of Appeal to insist on proceeding with the appeal when the voters, through their counsel, have intimated to the court that they no longer wish to pursue their action in the High Court.

“This move to make a ruling on a case that will be withdrawn is highly irregular and wrong in law,” the Bersih steering committee said in a statement today.

The four Johor voters had successfully obtained leave from the High Court in July to challenge the EC’s redelineation exercise, and the AGC’s appeal against this decision was due to be heard by the Court of Appeal on Oct 26.

Bersih said the AGC then confirmed to the voters’ counsel that it would be forced to withdraw the appeal due to the discontinuation of the case.

However, when the voters’ lawyer informed the Court of Appeal judges of their decision to discontinue their challenge in the High Court, the judges said they would make a decision regardless, Bersih said.

'AG misled the voters' counsel'

“Against previous assurances, senior federal counsel Amarjeet Singh then said his instructions were to proceed with the appeal.

“It is clear the AGC misled the voters’ counsel in saying that it would not proceed with the case, but informing the panel of the opposite,” Bersih said.

It also said that the Court of Appeal judges decided that the written submissions were sufficient to make a decision, despite a request to submit oral submissions.

The panel then decided to allow the AGC’s appeal and set aside the High Court’s decision to grant leave for judicial review, Bersih said.

Similarly, the Court of Appeal on Monday allowed the EC’s appeal against an injunction obtained by the Selangor state government to stop the EC from submitting its final report on the redelineation until the completion of the High Court proceedings.

“This latest decision maintains the EC’s 100 percent record in the Court of Appeal and Federal Court on delineation cases.

“The Court of Appeal’s ‘special panel’ judges... have consistently ruled that the rakyat are unable to challenge the proposals put forward by the EC,” Bersih said.

The electoral reform movement reminded the judges that their duty is to uphold the Federal Constitution and that 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 the elections for their own ends are left free to do so, with no regard for the constitution,” Bersih said.