The Kuala Lumpur High Court has dismissed an application by six Malaysian citizens residing and working in the United Kingdom to be registered as absentee voters.

Justice Rohana Yusuf, in dismissing the application by Dr Teo Hoon Seong, ruled that the Election Commission (EC) had acted rightly in not registering them as absent voters.

The other applicants are V Vinesh, Paramjeet Singh, Yolanda Sydney Augustin, Sim Tze Wei and Leong See See.

Justice Rohana in her judgment said the applicants do not come under the category of “absent voters”.

She said the applicants at the outset had said they are not challenging regulation 2, on the definition of absent voters, and the EC meanwhile in its affidavit maintained its position in an affidavit that its decision to reject their application is based on compliance with that regulation.

“I must say that this application is rather odd. It is essentially a challenge of a decision by a body that simply complies with the law. It is a challenge of a perfectly valid decision by the EC under regulation 2.”

“If regulation 2 is not challenged and is thereby accepted as valid law, then I am unable to understand let alone appreciate how a decision made pursuant to a valid law can be subject for a judicial review,” she said.

The EC is empowered to make a decision on absent voters based on the Election (Registration of Electors) Regulation 2002, said Rohana.           

‘Argument is naive’

Justice Rohana said the counsel for the applicants argued that regulation 2 is not exhaustive and hence the EC can extend the categories to include the applicants as absent voters.

“In my considered view, such an argument is naive and ignorant of the facts that regulation-making power and administrative decision of the EC are two different powers enjoyed by the body. The EC cannot in the exercise of its administrative power uses its regulation-making power to change the rule.

“The EC in the exercise of its administrative power is legally bound to follow the regulation that it had made. The EC cannot be faulted for following the regulations which it had determined. Hence, the application is dismissed.”

Absent voters are classified under the EC regulations as military personnel or civil servants working overseas and full-time students, along with the three categories of spouses.

   

They, however, do not include Malaysian citizens who work overseas in the private sector, which is the case involving the six applicants.

 

Justice Rohana ruled that following this, she cannot make the orders sought for by the applicants to extend the regulations as the court’s task only to interpret the law, and it cannot change as it would usurp the powers of the legislature.

“The role of a judicial review application is to ensure public authorities comply with the rules and regulations in their decision-making process and in the decision itself,” ruled the High Court judge, who also did not make any order as to costs in dismissing the application.

The decision today will affect some 700,000 Malaysians who are residing and working overseas in the private sector.

Suhakam saddened by decision

Human Rights Commission (Suhakam) commmissioner Detta Samen, who was present as an observer, said in an immediate reaction that he was saddened by the decision as every citizen should be allowed to vote, and there should not be any discrimination.

He acknowledged the technicalities raised by the judge and said Suhakam will look into the matter further.

“The fact that the court come up with this decision, meaning to say some Malaysian citizens would not be able to vote shows an element of discrimination is still there. But whatever tactical defect that the judge had brought up just now, I think Suhakam and the lawyers will bring up this matter again,” he said.

Suhakam also held a watching brief on the application.

Lawyer Edward Saw, who represented the six applicants, said he will seek further instructions from his clients but indicated that they will likely appeal against today’s decision.

Senior Federal Counsel Amarjeet Singh appeared for the EC.