updated version The Kuala Lumpur High Court today ruled against a group of Internal Security Act (ISA) detainees who sued the Election Commission (EC) for rejecting their right to vote in the last general election.

Judge Mohamed Raus Sharif said if a person is detained under the ISA, he or she loses the rights guaranteed under the Federal Constitution.

"Such deprivation of the rights is given by the constitution itself. Thus, the allegation that the commission was violating the applicants' rights under Articles 8 and 10 of the Federal Constitution is clearly misconceived," he added.

Article 8 of the Federal Constitution stipulates equal protection under the law while Article 10(a) guarantees freedom of speech and expression.

"To me, the violation of the applicants' rights under Article 8 and 10 of the Federal Constitution is a non issue," the judge said.

22 applicants

The 22 ISA detainees in the case are Yazid Sufaat, Nik Adli Nik Abdul Aziz, Ahmad Yani Ismail, Zainon Ismail, Abd Samad Shukri Mohamad, Abu Bakar Che Doi, Mat Sah Mohd Satray, Md Lotfi Ariffin, Idris Salim, Muhamad Zulkepli Md Isa, Mohd Sha Sarijan, Solehan Abdul Ghafur, Abdul Murad Sudin, Mohd Rafi Udin, Nordin Ahmad, Asfawani Abdullah alias Ab Wahab, Roshelmy Md Sharif, Alias Ngah, Suhaimi Mokhtar, Muhamad Zulkifli Mohamad Zakaria, Mat Salleh Said and Khairuddin Saad.

They are seeking a declaration that their fundamental and basic human rights under Article 119 of the Federal Constitution to vote in the general election in March 21, 2004 had been denied and violated by the EC.

All of them, detained under the ISA for alleged involvement in the Jemaah Islamiah and Kumpulan Militan Malaysia (KMM), are also seeking a declaration that their fundamental and basic human rights for equal protection under Article 8 had been denied and violated by the EC.

They are also seeking an order of certiorari to quash the decision and action of the EC which had failed, refused, denied and neglected to enable and allow them to go to the polls.

They are seeking punitive, aggravated and exemplary damages and interest.

In the landmark judgement, Mohamed Raus said that the EC was not duty-bound to facilitate the casting of votes by bringing the applicants to their respective constituencies.

"To me, there is no such duty cast upon the commission. This is because it is not the responsibility of the commission to ensure that all electors would vote on polling day," he said.

He said voting was not compulsory in Malaysia, and is left to the individuals to go to the polling stations.

"For example, if a person is working in Kuala Lumpur on a polling day, but he is registered as an elector in the constituency of Kota Bahru, it is up to him to make the necessary arrangement to go back to Kota Bharu to exercise his rights to vote," he said.

Not postal voters

Therefore, the judge said it is not a duty of the EC to provide transportation for him to return to Kota Bharu, Kelantan to vote on the polling day.

"Similarly, it is not the duty of the commission to transport the applicants to the respective constituencies to enable them to vote on the polling day," he said.

He said although the applicants contended that the commission should have provided them the privilege to cast the vote in Kamunting detention camp where they were held, all of them were registered as regular voters.

"As regular voters, the applicants are not entitled to vote as postal voters," he said.

Mohamed Raus said since the applicant are not postal voters, "there was no violation of their rights when the commission did not provide them with the postal ballot papers".

"The applicants are all regular votes and have to personally present themselves at the respective constituencies in order for them to vote," he added.

The group's leading counsel Edmund Bon (right) told reporters outside the court that the core issue of their arguments as to whether the EC is obliged to consider and to make regulations to allow detainees under the preventive detention law to exercise their rights was not addressed.

He said an appeal will be submitted within two weeks.