From the streets to the courtroom: judicial electoral contestation

Malaysians are gearing up for heated polls in the 14^th General Election (GE14). Prime Minister Najib Tun Razak and his party the United Malays National Organization (UMNO), in office since 1957, aim to perpetuate their tenure. Many do not fully realise, however, that for the past three years there have been intense battles in the courtrooms, which continue to cast an unconstitutional shadow over the election. Minimally, the legal challenges have raised serious questions about the fairness of the electoral process and the nature of political power in Malaysia.

When Malaysia’s electoral reform process began in 2007, the focus was to head to the streets to draw attention to the country’s uneven electoral playing field. Bersih (the Coalition for Clean Elections) moved from an opposition vehicle to a broad civil society movement. From 2011 the movement was led by lawyer Ambiga Sreenevasan, whose leadership brought out thousands of Malaysians to rallies and culminated in a People’s Tribunal in 2013 outlining serious irregularities in that year’s election, GE13. That year the chairmanship of Bersih was taken over by Maria Chin Abdullah, a social activist, who ironically spearheaded fierce legal challenges over the electoral process until her resignation last month to stand as a candidate.

A broad range of stakeholders, including pro bono lawyers, opposition parties, state governments and, importantly, ordinary voters, have instituted an unprecedented number of legal challenges over electoral reform in Malaysian courts. While the legal cases were not able to halt the delineation process, they have provided obstacles to the Electoral Commission (EC) and exposed breaches in standards of electoral integrity, as detailed below. Given the complexities of the change in strategy from the streets to the courtroom and the fact that most of the cases have received limited media attention, this article focuses on how legal contestation is an integral part of GE14.

The table below summarises the legal cases over the past three years. Broadly the cases have involved three issues: 1, the content; and 2, the process of the delineation exercise; and 3, even more fundamentally, the power of different political institutions to make decisions on elections.

News reports to date has focused primarily on the content of the ‘front door’ delineation, based on the report submitted to parliament in March 2018. Concerns have rightly swirled around malapportionment (inequality in representation), gerrymandering (unfair drawing of boundaries) and the integrity of the electoral roll. One case, Kuala Kuba Bharu Voters vs. EC, has also touched on the ‘backdoor’ delineation, the non-transparent movement of voters between constituencies. Not only have these cases served to further mobilise the public over these concerns, with detailed documented studies by Bersih to show the unfairness of the delineation process, the discussion has also been put on the public record.

The detailing of the manipulation of the electoral system to advantage the incumbent has provoked an unprecedented number of objections by the public to the delineation (as detailed in the EC’s own report). Furthermore, the High Court decision in December 2017, Selangor Government vs. EC, has acknowledged that malapportionment and gerrymandering have taken place. This may seem like the obvious, but it serves to put on legal public record structural imbalances in the electoral system and is an acknowledgment within the system of the unfairness in the delineation.

Table: Legal Cases Involving Electoral Reform

Case	State	Status	Issues
Sarawak State Assemblyman See Chee How vs EC, Filed in 2015	Sarawak	High court allowed case to move forward declared the delineation notice void in May 2015 Overturned by Court of Appeal (COA) in August 2015 and Federal Court (FC) in October 2015	Process of delineation: Inadequate information in notice, insufficient notice (did not publish in appropriate newspaper)
Selangor State Government vs EC, Filed in 2016	Selangor	Main Dismissal High Court Dec 2017 Legal process involved stays that impacted overall timing of delineation exercise and raised potential of Selangor being excluded from process COA dismissals ended March 2018	Process of delineation: Insufficient information for voters in public display Content of delineation: Malapportionment gerrymandering, missing addresses in electoral roll. Institutional Power: Power of the courts to review recommendations by the Election Commission which did not comply with provisions under the Federal Constitution.
EC vs Selangor State Government. (Stay of Enquiry Process) Filed in 2017.	Selangor	EC’s application allowed December 2017.	Institutional Power: Power of the Courts to stay the Election Commission from holding local enquiries pending a court proceeding. Asked to set aside stay granted by the HC after main dismissal of the main case in December 2017. Process of delineation: Conduct of local enquiries.
Selangor Govt vs. EC (Filing of EC Report to PM). Filed in 2018.	Selangor	Selangor Government’s application dismissed in March 2018.	Institutional Power: Power of the Courts to stay the Election Commission from submitting a final report to the PM pending court proceedings. Selangor government called to injunct the EC from submitting its final report to the EC pending Selangor appeal at the COA.
Selangor Government vs. EC (Stay of Local Enquiry Process requested Shah Alam High Court) Filed in 2018.	Selangor	Selangor Government’s application dismissed in March 2018.	Institutional Power: Power of the Courts to stay the Election Commission’s local enquiry process Process of delineation: Conduct of enquiry regarding insufficient notice period and denial of legal representation at the local enquiries
Segambut voters KL vs EC, Filed in 2016	KL	EC subsequently held local enquiry before case heard. Case was then withdrawn in January 2017	Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Setiawangsa KL Voters vs EC, Filed in 2016	KL	EC subsequently held local enquiry before case heard. Case was then withdrawn in Dec 2016	Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Kuala Kubu Bharu Votes vs EC, Filed in 2016	Selangor	Voters lost at HC, won at COA & the matter is now pending at the FC (note these cases merely revolved around whether leave for judicial review should have been granted i.e. whether the voters were out of time in filing the application – hence the issues of content and process of delineation have not been ventilated or determined)	Content of delineation: Challenged the movement of voters before the delineation exercise began. Process of delineation: Involves question about the ‘backdoor’ delineation procedures.
Selangor State (Exclusion) vs EC, Filed in 2017	Selangor	KL High Court allowed injunction against the submission of final redelineation report without Selangor. COA reversed the decision on 30 October 2017.	Process of delineation: Exclusion of Selangor from the second public display
Penang MP Zharil Khir Johari vs EC, Filed in 2017	Penang	Case dismissed in March 2017	Process of delineation: Challenged the fact no delineation held in Bukit Bendera constituency
Melaka Voters vs EC, Filed in 2017	Melaka	High Court Granted Leave and Stay in May 2017. Court of Appeal Dismissed Case in July 2017 impacted other cases. Federal Court refused leave for appeal in February 2018	Process of delineation: Exclusion of Selangor from second round delineation in late 2017. Content of delineation: malapportionment gerrymandering, missing addresses in electoral roll.
Kelantan Deputy MB vs EC, Filed in 2017	Kelantan	Case withdrawn in July 2017 after Melaka case lost at Court of Appeal	Process of delineation: Exclusion of Selangor from second notice exercise.
Bandar Tun Razak KL vs EC, Filed in 2017	KL	EC subsequently held local enquiry before case heard. Case was then withdrawn in July 2017	Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Perak Voters vs EC, Filed in 2017	Perak	Case withdrawn in July 2017 after Melaka case lost at Court of Appeal	Content of delineation: malapportionment, gerrymandering, missing addresses in electoral roll, alleged inappropriate use of electoral roll. Process of delineation: Exclusion of Selangor from second notice exercise.
Johor Voters vs EC, Filed in 2017	Johor	Leave was granted by High Court, but application for a stay of proceedings denied. The EC appealed on granting leave to COA. On the day of the hearing (October 2017), counsels informed COA that plaintiffs are withdrew judicial review, but the panel directed appeal to proceed thus allowing the EC’s appeal for no leave to be granted.	Content of malapportionment: gerrymandering, missing addresses in electoral roll. alleged inappropriate use of electoral roll. Process of delineation: Exclusion of Selangor from second notice exercise.
Penang State Government vs EC, Filed in 2017	Penang	Pending. Main dismissal was in January 2018. Further appeal to Federal Court filed in March 2018. Case has yet to heard.	Process of delineation: Challenging the decision of the EC to propose no redelineation changes at all in their proposal.
MPs Kulasegaran & Thomas Su vs EC, Filed in 2017	Perak	Dismissed in High Court in February 2018 Eventual appeal at Federal Court was heard together with Melaka’s case. Also dismissed	Content of delineation: malapportionment, gerrymandering Process of delineation: Right to information/reply from the EC
(48) Segamat voters vs. EC, Filed in 2017	Johor	Dismissed by COA overturning High Court in February 2018	Content of delineation: Composition of electoral roll, inclusion of an army camp members (949) for a camp not yet built Power of Institutions: Power of judicial review.
Parti Cinta Malaysia Wilfred Bumburing and four others vs. EC, Filed in April 2018	Sabah	Pending	Process of delineation: Challenged the failure to follow-through on the increase of seats in Sabah, passed in the state assembly in August 2016, but excluded from March 2018 vote in national parliament. Calls for stay in election until this resolved. Institutional Power: Power of state versus federal government
Charles Santiago vs Speaker of Dewan Rakyat and EC, Filed March 2018		Pending Injunction withdrawn in April 2018 because report was pushed through parliament. Full case is still pending hearing.	Power of institutions: Seeking injunction of the tabling delineation report in parliament on grounds that other cases still in court. Calls for no interference/contempt of courts. Aimed to prevent delineation from moving forward.
Maria Chin and 106 others vs EC, Prime Minister and Speaker of the Dewan Rakyat. Filed March 2018		Pending Decision expected April 11th	Process of delineation: 250 objections filed in Selangor, only 50 plus called to the enquiry. Constituencies that had no changes in second round of exercise, objections rejected. 107 of objections submissions were not called for local enquiry. Process of local enquiry challenged. Subsequent final report reverted to original changes potentially adding merit to the objections dismissed.
Petaling Jaya City Council (MBPJ) vs EC, Prime Minister and Speaker of the Dewan Rakyat. Filed March 2018		Pending.	Process of delineation: MBPJ has filed on similar grounds as above, no local enquiry on objections filed in Petaling Jaya.

The most apparent effects of the court cases involve the second realm, the impact on the delineation process. The legal cases have forced stays on the part of the EC, with the most impactful being the Selangor State Government vs EC case. The stay was removed in December 2017, but it forced the hands of the EC for over a year, as they opted to move ahead in the national second display exercise (a constitutional 30 days requirement to make the changes public and open to objection) without the state of Selangor, following a procedure that did not conform to the past or inclusiveness of the country as a whole. The failure to properly follow through in the delineation process regarding the increase number of seats in Sabah – passed at the state level in 2016 but not forwarded to parliament this year – is another example of inconsistencies in the delineation process and is now being challenged.

Legal contestation also forced the hand of the EC to carry out local enquiries, as occurred, for example, in Segambut and Setiawangsa. The challenges aimed to make the EC more accountable in its engagement with voters and sharing of information. In the latter, there was little success in outcome, but the court proceedings in the Selangor government case revealed that the EC allegedly destroyed previous electoral rolls, raising questions about its professionalism. In fact, the EC did not come off well in many of the arguments it presented, as it appeared to be what its critics charge it with, lacking independence and on a political mission for the dominant party UMNO. An example of this is the response to the Segamat postal voters, where there is no physical building but 929 army camp voters listed. Postal votes have traditionally been used to buttress support for the government. The EC repeatedly failed to present explanations when queried on why it opted to significantly expand malapportionment, broaden the use of gerrymandering and dismissed concerns about the electoral roll, opting for a strategy of denial and dismissal. In the final submission, the EC reverted back to the original proposals that were challenged both in the courtroom and by citizen objections, after it had initially proposed counter proposals to appease some concerns about the perceived unfairness in the second display exercise. The EC’s behavior suggests ‘bad faith’ as well as contempt for calls for greater fairness in the electoral process. The legal cases helped expose how the EC responded to the public.

The thorniest issue involves what the cases raised about the relative power of different institutions. Here there are multiple important dimensions. The first involves the relationship between the EC and the executive, other branches of government, parliament and the judiciary. The court proceedings often showcased a non-independent EC. Repeatedly, the EC – a constitutionally-mandated body – came off as ‘the government’ rather than as a professional autonomous (or even semi-autonomous) body, the international standard for electoral integrity. With the EC reporting directly to the prime minister, the court cases documented the EC’s political colors.

Given the political nature of these cases, the relationship between the judiciary and the executive was also center stage. Recent cases in the courts – particularly Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat in May 2017 and Indira Gandhi a/p Mutho v Pengarah Jabatan Islam Perak & Ors in January 2018 – have brought to the fore the power of the courts to review legislation and the executive, the idea of judicial review. Many of the cases called openly for the courts to review the content of the delineation exercise in a meaningful manner. While the High Court in the Selangor State Government vs. EC case did acknowledge serious problems in 2016, it was bound by a decision at the Court of Appeal (COA) in the Melaka and MP Kula Segeran cases that prevented addressing the substance as the delineation was still not then passed by parliament. Throughout, the court decisions relied heavily on technicalities to dismiss meaningful engagement with the content of cases, holding that the EC’s recommendations were not “decisions” capable of being reviewed and labeling the cases as “nonjusticiable”.

Some critics have labeled Malaysia’s judiciary as “pliant” and not independent, and this lack of meaningful engagement with the content of the delineation could reinforce this perception. Yet collectively the EC cases show a more varied picture. There were tensions between judicial reticence and more asserted measures to protect the Constitution and fairness in the rule of law. Many of the decisions went against the government, accompanied by stays which pressured the EC to act. In one violation of court protocol (also involving the Selangor Government case), a representative of the Attorney General’s office stood up to challenge the judge after he had decided on an interim stay which favored the plantiff. This prompted the judge to reiterate his earlier decision in strong terms.

The relationship between the executive and judiciary was not always smooth in these legal battles. It is only at the upper courts – the Court of Appeal and Federal Court – where there was a 100% decision rate in favour of the government. There were also areas where decisions not to recuse judges who sat on earlier decisions with similar parties– in the hearing of the 2018 Selangor government case involving the filing of the report to parliament – and in the rushed timing of the decisions in the past six months where questions are being asked about the political position of the courts.

A full assessment of the courts’ capacity and willingness to use their powers of judicial review cannot yet be made, however, because there are at least five election cases still pending. Further cases on the delineation process and content will likely be filed, given the fact that the technicality that the delineation was not legal has been removed with parliament’s passage of the exercise. The courts will face a difficult decision on whether to exercise their judicial review and decide on constitutionality of the delineation, and ultimately the constitutional validity of the elections themselves. The electoral legal challenges have pushed the courts toward a legal reckoning. In Malaysia’s history, no election has been called with so many legal cases on the elections itself outstanding.

Finally, the legal cases have also opened up unintended areas of contestation. Consider the recently filed Sabah case, which tests the power of the state assembly to decide on its numerical composition. It taps into the power of respective state and federal governments vis-à-vis each other, which is already a highly contentious issue in Sabah and one of the key themes in the coming state election campaign. As is often the case, contention leads to unexpected outcomes.

Many said Bersih’s legal strategy was doomed from the onset, that the courts could provide no meaningful check on electoral integrity. These assessments are not correct, as judicial contestation did indeed significantly shape the process of the delineation, expose and reveal more about the content of the delineation and test relationships between Malaysia’s political institutions. The importance of the courtroom battleground remains crucial in shaping the final election outcome and its legality.