By Hafiz Yatim | The Edge Malaysia
In a landmark decision, the Court of Appeal on Wednesday ruled that the Election Commission (EC) and government’s decision to bar a Skudai voter from voting in the Johor state elections in 2022 due to him having COVID-19, was wrong.
The three-member appellate bench allowed the appeal by K Tamileswaraan in granting a certiorari (to quash) order against the EC’s decision to bar him from casting his vote on March 12, 2022, due to his quarantine period and having an infectious disease, as the action was unlawful.
Furthermore, judge Datuk Wong Kian Kheong also allowed a declaration that EC had violated Tamileswaraan’s constitutional right under Article 119 of the Federal Constitution.
Article 119 concerns persons who can vote in a state and general election.
However, Wong, in the unanimous decision, used the appellate court’s discretion not to award damages to Tamileswaraan, as it ruled that the EC was merely following the standard operating procedure in the interest of public health, and the officer had acted in good faith in this case.
Wong, who sat with Datuk Supang Lian who led the bench, and Datuk Ismail Brahim as the third judge, said that the High Court judge fell into an error in law by dismissing the voter’s legal action.
Wong said it was not in dispute that Tamileswaraan had fulfilled Article 119(1) of the Federal Constitution that he is an elector (voter) within the meaning of Article 160(2), and an elector is entitled to vote.
“It is clear that the standard operating procedure (SOP) and Prevention of Control and Infectious Disease Regulations (PCID) are considered subsidiary legislation within the meaning of Section 3 of the Interpretations Act, and do not fall within the definitions of federal law and Act of Parliament in Article 160(2) of the Constitution.
“This follows that the SOP and the PCID cannot be used to restrain the EC’s duty to conduct elections. The High Court judge should have decided the voter’s right to vote in the elections pursuant to Article 119(1),” he said, adding that the High Court judge erred in deciding that the EC (Conduct of Elections) was subject to the SOP and PCID regulations.
In view of this, he said the EC had committed an “error of law”, or an illegality in this case, in denying Tamileswaaran’s right to vote in the elections.
“Accordingly, we have no hesitation to allow the appeal,” Wong said, adding that the bench ordered no order as to costs.
Counsel New Sin Yew from election watchdog BERSIH 2.0 and representing Tamileswaraan, said this is a groundbreaking and important decision made by the Court of Appeal.
“The right to vote is a cornerstone of our democracy. The Court of Appeal has rightly recognised the right to vote as a constitutional right, and not a statutory right, which cannot be easily abrogated.
“Constitutional rights require a two-thirds approval from Parliament to be changed, while statutory rights only require a simple majority. And the right to vote certainly cannot be denied through subsidiary legislation made by government officials,” New, who appeared with Nur Izni Syazwani Ahmad, said.
Senior federal counsel Mohammad Al Saifi Hashim and federal counsels Nursyazwani Abdul Aziz and Fauziah Daud from the Attorney General Chambers appeared for the EC and government.
The appellate court heard submissions to Tamileswaraan’s appeal in April before reserving its decision, and delivered its decision on Wednesday.
Tamileswaraan was tested positive for COVID-19 on March 7, 2022, and tried to cast his vote on March 12, 2022, six days into his COVID-19 quarantine, but was barred from doing so, despite a self-test result on that day turning out negative.
