A legal viewpoint on Sarawak boundary decision – Lim Wei Jiet

On August 7, 2015, the Court of Appeal overturned a momentous Kuching High Court decision that nullified the Election Commission’s (EC) notice, which was constitutionally mandated, to show the “effect of the EC’s proposed recommendations” of boundary review pursuant to section 4(a) of the 13th Schedule to the Federal Constitution.

The media have thus far reported on the Court of Appeal’s 2 main reasons for its decision.

First, the Court of Appeal opined: "The High Court had stretched the meaning of the word 'effect' in Section 4(a) of the 13th Schedule beyond permissible limits” and further elaborates that “there is a distinction between a requirement to state the effect of a proposed recommendation and a requirement to disclose details of the recommendation". (the “details”, as demanded to be disclosed by the Respondents, are i) the proposed electoral roll, ii) exhaustive list of changes to the Parliamentary and State constituencies, iii) polling station districts on the map, iv) administrative, physical and infrastructural boundaries on the map, v) electoral size and vi) land mass of proposed constituencies).

Second, the Court of Appeal held: "The enquiry under Section 5(b) of the 13th Schedule is the proper forum to decide on any objection to the proposed recommendations, not the court” and “for the court to do so would be to usurp the powers of EC as provided by the Federal Constitution”.

While the full grounds of judgment have yet to be released, a few preliminary comments would be helpful to readers. This is particularly when I find the Court of Appeal’s constitutional interpretation to be unsettling.

I. Stretching the word “effect” beyond permissible limits?

Let it be clear that the Federal Constitution is no ordinary piece of legislation. It should not be interpreted the same way as a statute.

In Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Ahir bin Syed Darus [1981] 1 MLJ 29, the Federal Court stated that “...a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – with less rigidity and more generosity than other acts”.

The current apex court in Lee Kwan Woh v PP [2009] 5 MLJ 301 held: “the Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights”.

Hence, “stretching” the provisions of the Constitution is certainly not an oddity; instead it should be encouraged.

To what extent should the word “effect” in section 4(a) be stretched?

The answer lies in section 4(a)’s close relation to section 5(b) of the 13th Schedule to the Constitution, which provides for the right of voters to make objections to the proposed recommendations in local enquiries.

The Federal Court in Dato’ Seri Ir Hj Mohammad Nizar Bin Jamaluddin v Dato’ Seri Dr Zambry Bin Abdul Kadir (Attorney General, Intervener) [2010] 2 MLJ 285 enunciates: “It is an established canon of constitutional construction that no one provision of the Constitution is to be separated from all the others, and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument”.
Whenever a state action makes a provision of a fundamental right in the constitution “ineffective or illusory”, as stated in the Supreme Court in Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 MLJ 697, then that state action is unconstitutional.

These rules of constitutional interpretation, taken as a whole, lead to the following conclusion – that the section 4(a) Notice’s disclosure of the “effect” of the EC’s proposed recommendations must be stretched to the extent that it prevents the right to make objections in section 5(b) from being rendered ineffective or illusory.

Therefore, I believe that the Court of Appeal’s distinction between the requirement to state the “effect” of the proposed recommendations versus the requirement to “disclose details” of the proposed recommendations is irrelevant.

Label it by any term you want – the point here is whether the disclosure renders section 5(b) ineffective or illusory. Further, isn’t it possible, as the High Court found, that the only way to illustrate the “effect” of the proposed recommendations is to precisely “disclose details” of the proposed recommendations?

In other words, the disclosure of details is a prerequisite, not a wildly imaginative leap, to the very “effect” which the Court of Appeal is emphasising on.

II. The proper forum to decide any objections to the proposed recommendation is the local enquiry under section 5(b)?

Is this in line with the reality of how a local enquiry is conducted?

The reality is that a typical local enquiry only accords 30 minutes for a person representing 100 voters. That group of 100 voters cannot be represented by a lawyer.
Thus, the Court of Appeal is now expecting a layperson to i) ask the EC to explain why those details are not disclosed, ii) allow time for the EC to disclose such details, iii) digest the sheer volume of details there and then, iv) formulate a reasonably informed objection based on that disclosure, v) express those objections in words and vi) allow the EC to answer such objections – all in 30 odd minutes? I leave that for you to judge.

But let’s be serious. Firstly, it is not the duty of voters to point out on these wide-scale lack of information, which the EC itself has an entrusted duty to deal with way before the Notice was published.

Secondly, that crucial 30 minutes is not a venue to iron out the EC’s own negligence on a macro level, but to focus on the merits of the recommendations specific to the constituency itself.

Thirdly, voters should be able to have enough time to consider the EC’s exact recommendations before the local inquiry, certainly not to only get to know of such exact recommendations during the 30 minutes session itself.

We are not expecting the Courts to determine the substantive merits of the objections to the EC’s proposed recommendations. The crux is whether the EC had procedurally complied with section 4(a) on an issue as important as electoral delimitation.

The judiciary definitely has the power to ensure that public institutions have complied with the law; in fact, the Judiciary is entrusted to preserve and defend the Federal Constitution. 

Thus, talks about usurping the powers of the EC is, at least to my humble opinion, incomprehensible.

Again, I await the full grounds of judgment and stand corrected for any legal viewpoints made here.

Nonetheless, I believe Malaysians deserve to know that the Federal Constitution is a document which, if enshrined to its deserved interpretation, never rigid and adequately guards our vital democratic rights. – August 9, 2015.

* Lim Wei Jiet reads The Malaysian Insider.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.