BERSIH 2.0 chairperson, Maria Chin Abdullah, has withdrawn her appeal against the decision of the Kuala Lumpur High Court to refuse leave for her judicial review application. BERSIH 2.0 is concerned that if we proceed with the appeal the outcome would not be favourable and additionally may operate as a precedent that would have adverse effect on other pending and future delineation law suits filed against the Election Commission.

On 24 November 2016, Judicial Commissioner (as he then was) Azizul Azmi Adnan at the Kuala Lumpur High Court dismissed Maria’s bid to obtain leave to challenge the EC’s proposed redelineation exercise. The basis of Maria’s application was that the redelineation notice published by the EC was severely lacking in detail, in particular on the crucial information of landmass. Maria subsequently appealed against this decision to the Court of Appeal

On 23 January 2016, Maria’s lawyers were informed that a special panel of judges will be hearing the appeal at the Court of Appeal. Strangely enough, this same special panel was also assigned to sit on YB Nurul Izzah Anwar’s judicial review application against the EC. In those proceedings, the Attorney-General is appealing against the High Court’s decision to grant leave to the judicial review application by YB Nurul Izzah Anwar and 10 voters. Their judicial review application is to quash the EC’s proposal to redraw the Lembah Pantai parliamentary seat. We consider it to be unusual to have such a special panel convened to hear these appeals, especially when it was not requested by any of the parties.

The High Court decision in Maria’s case follows the Court of Appeal decision in the Sarawak delineation case in 2015 which endorsed the EC’s standpoint that only minimal information has to be disclosed when a redelienation exercise is proposed.

This lack of information, Maria opines is a serious compromise of the voters’ ability to scrutinise and challenge the EC’s proposals effectively and competently, and as such gives the EC an unfair advantage in proposing any redelineation to constituencies they deem necessary. The lack of landmass information has impaired any objection by interested parties to challenge the EC on whether due weightage has been given in EC’s proposal in accordance with the Thirteenth Schedule of the Federal Constitution.

Sub-section 2(c) of the 13th Schedule reads:

the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies;

BERSIH 2.0 reasserts that the information is necessary and crucial to assess constitutionality of the vast disparity in proposed electorates of P092 Sabak Bernam (37,126), P094 Hulu Selangor (76,599), and P106 Damansara (150,439).

The ratio of 4:1 between P106 Damansara and P1092 Sabak Bernam is clearly a grave deviation from the “approximately equal” apportionment. But is the excessive over-representation of P092 Sabak Bernam (37,126) justified by its area or landmass (in squared kilometers)? If so, could the EC explain why P094 Hulu Selangor can have an electorate twice as large as that of P092 Sabak Bernam (76,599 voters) with a landmass that seems to be five times as large?

Clearly to judge the constitutionality of this grave malapportionment, objectors need the landmass information of all constituencies and cannot count on eyes to judge their relative size. The necessity of the landmass information is readily admitted by the EC which always included it in its final report to the Parliament (see Table).

If left unchecked and unchallenged, the EC would be allowed to decide on the kind of information that needs to be made available to the public, and that only the bare minimum of information regarding the proposed redelineation exercise would be disclosed.

Maria’s suit and subsequent appeal against the High Court decision was to stop the EC’s insidious act of deliberately denying state governments, local councils, and voters the land mass information, which effectively hampers the stakeholders’ ability to raise effective objections to the redelineation exercise.

We regret that our leave was not granted in the High Court and now circumstance has also led us to stop our pursuit in the Court of Appeal. Notwithstanding our withdrawal, we believe Maria’s legal challenge has helped to draw public attention to this important issue.

BERSIH 2.0 will continue working to expose the EC’s insidious actions and decisions to subvert democracy in the redelineation exercise. They should remember all their actions are now monitored and documented by BERSIH 2.0 and concerned citizens. Those personally responsible in violating Article 113(2) and the 13th Schedule will be held accountable for their actions someday.

Signed by the BERSIH 2.0 Steering Committee members

Delineation report 2013