Judicial review: Ruling on leave February 17
by Jonathan Chia,
reporters@theborneopost.com. Posted on February 3, 2015, Tuesday
See (front) and Kho after the court proceeding yesterday.
KUCHING: The Kuching High Court will decide on Feb 17 whether to grant leave to hear a landmark application for judicial review by two voters to declare as null and void the Election Commission’s notice of proposed redelineation recommendations.
Justice Datuk Yew Jen Kie, who heard arguments on the application in chamber yesterday, also directed all parties concerned to file further submission, if necessary, by Feb 4, and reply, if any, by Feb 6.
The judicial review application was filed by state PKR vice chairman See Chee How and Pauls Baya from Baram on Jan 28. It aimed to seek a court declaration that the publication and notification by the EC on the delineation of constituencies did not comply with provisions contained in the 13th Schedule of the Federal Constitution.
The EC was named as the respondent in the judicial review.
State EC director Datu Takun Sunggah said the EC had gone beyond what was required under the Federal Constitution by publishing the proposals in a local newspaper circulating in the state constituency when they published them in the New Sarawak Tribune and Utusan Sarawak.
He added that the EC had also published the proposals in the New Straits Times and Utusan Malaysia in the Peninsular Malaysia, as well as The Borneo Post in Sabah.
“Their (applicants) main argument is the notice … that we did not give enough information to the public, but the notice is at the display centres, and we have all the information there,” Takun told reporters when met after the court hearing yesterday.
He said the state EC had so far received 13 objections from all over the state, where each complaint consisted of 100 people, as required under Section 5 of the 13th Schedule of the Federal Constitution
He added that the EC would decide on the date for the hearing of these complaints later.
Senior federal counsel Shamsul Bolhassan, who represented the Attorney General’s (AG) Chambers yesterday, told the High Court that the application for judicial review by See and Pauls was “premature”.
“As far as we are concerned, the EC had complied with the provisions of the law in the delineation notice, and we said the notice is a valid notice under the law, and we have complied strictly to what has been provided for under the Federal Constitution.”
On the insufficient notice raised by the plaintiffs, Shamsul said, “The notice stated how you’re (constituents are) affected and where the notice can be inspected. They have 100 days to make representations and objections. That has been complied with, and if they want further particulars, they can go to the 51 stations provided for in the notice.”
As the hearing yesterday only involved leave of application for judicial review, Shamsul said he only represented the AG Chambers, and the EC would be represented during the substantive stage, if the leave is allowed.
Meanwhile, See, who is also Batu Lintang assemblyman, in response to Shamsul’s argument that the application for judicial review was premature, said Shamsul came up with the argument because they were taking the judicial review as a challenge to the proposed recommendations, which was not at this stage.
“What we are challenging is the notice of the proposed recommendations by the EC. We are just talking about notice at this stage. Lacking in particulars, the notice is wrong and insufficient.”
He said the New Sarawak Tribune and its sister paper Utusan Sarawak had limited circulation in Sarawak, and an affidavit was filed to show that these papers have no circulation in various rural centres whose voters are affected by the constituency review exercise.
He added that the same goes for the New Straits Times, Utusan Malaysia, and the The Borneo Post in Sabah.
See said Clause 4 of 13th Schedule required the EC to publish in at least one newspaper circulating in the constituencies. But the question is whether it is sufficient for the EC to just publish the notice in more than a newspaper or is it necessary for them to publish the notice in newspapers and that the newspapers are circulating in all the constituencies affected by the delineation.
“We are submitting that the purpose of publishing the notice and what is required by Section 4 of the 13th Schedule is to publish in newspapers that are circulating in the constituencies to bring to the attention of all the voters affected by the proposed recommendations.
“It is not about just publishing in more than one newspaper.”
See said he also did not agree with the argument of the legal officers that the court did not have jurisdiction over the delineation process as in a country that practiced parliamentary democracy and separation of power, the decision, action, or omission by the legislature and executive branches of government were subjected to review by the court, unless there is specific provisions in the constitution and laws to oust the power of the court to judicially review the matter.
The High Court proceeding yesterday was also attended by state legal counsel Datuk JC Fong, who was holding a watching brief for the state government and State Legislative Assembly, and EC legal advisor Azizan Md Arshad.
See represented himself and Pauls. He was assisted by Desmond Kho.
Read more: http://www.theborneopost.com/2015/02/03/judicial-review-ruling-on-leave-february-17/#ixzz3QdJfAVCQ
