The Court of Appeal today dismissed the Penang government's appeal on its judicial review application to challenge the Election Commission's redelineation exercise.

In a unanimous decision, Justice Idrus Harun, who led a three-member bench, said the High Court judge did not err in the decision on Nov 20 last year not to grant leave to the state government.

This came after lawyer Leong Cheok Keng, acting for the Penang government, told the court that the judicial review application got the go-ahead from the state legal advisor seconded by the Attorney-General's Chambers, which was making the objection.

"There is no merit in this appeal. Hence the decision of the High Court is affirmed and the appeal is dismissed," said Justice Idrus. The judge made no order as to costs.

The Penang government's application for judicial review was similar to the Selangor government's bid where it complained of gerrymandering and malapportionment in the constituencies. 

Leong, the Malim Nawar assemblyperson, who appeared with co-counsel Chan Kok Keong, said they will take instructions from the Penang government on whether to file leave to appeal to the Federal Court. He indicated that most likely they would do so.

Leong earlier told the court that the threshold for granting leave is very low to ensure that the application was not frivolous and vexatious.

He also cited the landmark case of M Indira Gandhi, where it was ruled that the court should not abdicate its duty to intervene against the executive or legislature if the matter involved constitutional rights.

"In this case, the applicant is the Penang government, which represents the people," he said.

Chan said the action against the EC was justiciable if the commission had failed to follow the constitution.

Meanwhile, senior federal counsel Amarjeet Singh said there are four judicial decisions at the appellate court which showed that they cannot challenge the redelineation, as it was just recommendation and not final decision.

"One can consider it as half-baked recommendations, as it is not a final decision which is reviewable," he said.

Appeal by AG's Chambers, EC allowed

The same bench today, however, allowed the appeal by the AG's Chambers and EC against the Kuala Lumpur High Court decision on Jan 8 which granted leave to 48 Segamat voters to challenge on the inclusion of 949 army voters in their constituency. 

Justice Idrus said there are merits in the appeal by the AG's Chambers and EC and as such, the High Court order is set aside.

He also made no order as to costs.

The other judges were Justice Zaleha Yusof and Justice Kamardin Hashim. 

Senior federal counsel Suzana Atan told the court that the judicial review application was premature, as the voters had not exhausted all their avenues - with their appeal yet to be heard by the adjudicating officer.

Lawyer Michelle Ng, who appeared with Gobind Singh Deo, argued that judicial review application can be filed if there was illegality in the local inquiry proceedings and the rights of the 48 voters were violated.

She said, in this case, the voters were denied representation at the inquiry and they were not well versed in the language.

The lawyer also showed photos of the army camp which would only be completed on April 16 this year.

"Yet the army and their spouse are listed as voters."

She noted that before the High Court granted leave on Jan 8, the adjudicating officer had already dismissed the appeal by the 48 voters between Jan 2 to 7.