The Selangor government's appeal against the Election Commission (EC) over the present redelineation was dismissed by the Court of Appeal today.

A three-member bench led by Justice Ahmadi Asnawi ruled that the state government has the legal standing to initiate the judicial review, and they were right in questioning the process of redelineation  that the EC should use the principal and supplementary electoral roll when considering the redelineation, and not only rely on the principal electoral roll.

Under the Thirtheenth Schedule of the Federal Constitution, the state government, the local council or local authorities and a body of 100 or more persons can object to proposed EC recommendations that affect their constituencies.

However, in the unanimous decision read by Justice Vernon Ong, the court said the issue of redelineation, including gerrymandering and malapportionment, is not justiciable as the Selangor government could bring the questions up during the local inquiry.

Justice Ong said the notice and proposed recommendations are not amenable to judicial review as they do not fall within Order 53 rule 2(4) of the Rules of Court.

Order 53 rule 2(4) of the Rules of Court states that any person who is adversely affected by the decision of any public authority shall be entitled to make an application for judicial review.

"Hence, in the upshot, the appeal by the state is dismissed, " said Justice Ong.

No challenge to gazetted electoral rolls

The judge explained further that the issues of gerrymandering and malapportionment could not be challenged as any gazetted electoral roll cannot be challenged by virtue of Section 9A of the Election Act 1958.

Section 9A is an ouster clause in the Election Act barring people from challenging the gazetted electoral rolls.

However, Justice Ong said other obligations mandated by the terms of the Federal Constitution are subject to judicial review, such as the obligation to receive representations and objections from qualified persons, and to hold local inquiries to hear and consider such representations and objections under Section 5 of the Thirtheenth Schedule.

Meanwhile, Justice Ahmadi did not make an order as to costs.

The bench also did not rule whether the challenge was academic.

With the decision, lawyer Latheefa Koya who appeared with senior lawyer Cyrus Das who argued for the case said they will seek instructions on whether to file an appeal, as the appellate court did not rule on whether the application is academic.

It was previously reported that the Kuala Lumpur High Court judge Justice Azizul Azmi Adnan had last year dismissed the judicial review application by the Selangor government on the grounds he was bound by two Court of Appeal decisions in the Malacca and Ipoh judicial review applications.

Justice Azizul, however, had observed in his judgment that there was gerrymandering and malapportionment in the redelineation.

Only the Selangor government's challenge has been allowed to be heard on its merits while other challenges, including one mounted by the Penang government, did not go into merits.