Appeal against High Court decision to deny judicial review against EC

On 13 March 2017, Justice Lim Chong Fong of the Penang High Court dismissed my application for leave to apply for judicial review to challenge the constitutionality of the notice published by the Election Commission (EC) on 15 September 2016.

I had in October 2016 filed objections against the EC’s omission to redelineate the parliamentary seat of P.048 Bukit Bendera. My objections were based, inter alia, on the disparity in the number of voters between parliamentary and state constituencies in Penang and in particular those within Bukit Bendera.

For example, with 71,767 voters, Bukit Bendera has 1.43 times more voters than its neighbouring constituency of P.049 Tanjong with only 50,324 voters. As there are no logistical or geographical reasons for such a disparity, there is no reason why they were not re-delineated to achieve approximate parity as stipulated by Part VIII of the Federal Constitution.

Another clear example is N.23 Air Putih, a state seat within the parliamentary constituency of Bukit Bendera. Not only is it the smallest in Penang with only 12,752 voters, it is completely dwarfed by its neighbour N.34 Paya Terubong, which happens to be the largest in Penang with 41,707 voters. This corresponds to a huge disparity of 3.27 times. Similarly, there do not appear to be any compelling logistical or geographical factors to support such an omission.

My objections were rejected by the EC on the basis that there had been no recommended changes to the borders of the constituencies in question. It was on the constitutionality of this omission that I filed an application for judicial review.

Following Justice Lim’s decision to dismiss my application, I instructed my solicitors to file an appeal to the Court of Appeal. The appeal was filed on 30 March 2017.

Having perused the grounds of judgment by the learned Judge, I am of the opinion that there is sufficient reason to argue in the Court of Appeal that the learned Judge may have erred in the interpretation of the law. In particular, I dispute his view that the recommendation published in the gazette was merely a proposal and is therefore not justiciable at this juncture.

By filing this appeal, I hope that the Court of Appeal would review and reconsider the constitutional duties of the EC, and to decide on how these duties can be subjected to judicial supervision. A decision by the Court of Appeal is necessary as there are points of public importance raised by the learned Judge.

Zairil Khir Johari
Member of Parliament for Bukit Bendera
DAP Penang Vice-Chairman
DAP Assistant National Publicity Secretary

NB: This press statement was released on 7 April 2017 in Kuala Lumpur.

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