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Thread: Delimitation: Sarawak proposes to increase DUN from 71 to 82 seats

   
   
       
  1. #31
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    4:59PM Jun 15, 2015
    By Hafiz Yatim
    EC appeal on Sarawak redelineation on July 9

    6

    The Court of Appeal today fixed July 9 to hear the Election Commission's appeal against the landmark Sarawak High Court decision that declared null and void the electoral constituency redelineation exercise.

    The decision was made by Court of Appeal president Justice Md Raus Sharif, who sat for the case management of the matter. Normally, in such matters, the deputy registrar of the court decides
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  2. #32
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    3:51PM Jul 6, 2015
    Malaysiakini
    Ambiga to act for rep in suit against EC



    The Kuching High Court has allowed two peninsula Malaysia lawyers to represent their Sarawakian clients in their suit against the Election Commission at the Court of Appeal this Thursday.

    According to Star Online, High Court judge Yew Jen Kie granted Ambiga Sreenevasan and Cyrus Das the ad hoc practising licences for ad hoc admission under the state Advocates Ordinance.

    Plaintiffs See Chee How (photo) and Pauls Baya had applied for the duo to represent them on special circumstances, owing to Cyrus' expertise on constitutional matters while details of a re-delineation notice will be argued by Ambiga.

    Ambiga was once the head of electoral reforms watchdog Bersih.

    The Attorney-General's Chambers had objected to See's application on grunds that the case was not unique and thus did not require specific expertise that local lawyers couldn't provide.

    On May 15, the Kuching High Court had granted a declaration sought by See and Baya that the new electoral boundaries for Sarawak set by the EC were disproportionate and thus null and void.

    However, Putrajaya had appealed against the decision.

    The new boundaries would have resulted in 11 new seats being created, which critics argued benefited Parti Bangsa Bersatu Sarawak (PBB) the most.

    See, who is the Batu Lintang state assemblyperson, said the Sarawak Advocates Association had no objections to his application because the outcome of the appeal will set a precedent for the rest of Malaysia.

    "That's why we think it is necessary to get the best legal brains to assist in this case," he said.
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  3. #33
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    Misleading header:

    EC Notice Of Recommendations On Redelineation For Sarawak, Valid - Counsel

    By Jocelyn Ann Dragon

    PUTRAJAYA, July 9 (Bernama) -- The Election Commission's (EC) notice of its recommendations for the proposed redelineation of electoral boundaries for Sarawak is valid, the Court of Appeal, here, heard today.

    Senior federal counsel Amarjeet Singh said the notice was merely a means to notify the public of the effect of the EC's proposed recommendations to the review of the delineation exercise and the voters' rights to make representations were based on the copy of the EC's proposed recommendations and not the notice.

    He said the proposed recommendations provided more detailed information while the notice merely stated the effect of the proposed recommendations.

    Amarjeet said Section 4 of the 13th Schedule of the Federal Constitution required the EC to publish a notice in a newspaper to state the effect of the commission's proposed recommendations and that a copy of the recommendations was open for inspection at a specified place within the constituency.

    He said the High Court judge's interpretation in treating the notice as the basis to make the representations was superfluous, adding that the judge went beyond what the section (Section 4) intended.

    "The section only requires the effect of the proposed recommendations to be stated. The judge, however, interpreted that the section required the EC to disclose detailed particulars that would enable members of the public to know whether they are adversely affected and have the necessary locus standi to make representations," Amarjeet said.

    He also said that the matter was not a public interest litigation and the respondents -- Batu Lintang assemblyman See Chee How and a voter in Ulu Baram Pauls Baya -- did not have the locus standi (legal standing) to bring the action in a representative capacity for all other voters in the state of Sarawak.

    He said objections to the alterations of the constituencies were made by voters of the respective constituencies, adding that there were 64 representations made to object the redelineation of the constituencies.

    Counsel Datuk Dr C.V. Das, representing the respondents, argued that voters must be given detailed information as to where they were being placed and on how they would be affected by the redelineation.

    "Without detailed particulars in the notice and the draft constituency plans, it would be extremely difficult for the public to exercise their fundamental constitutional right to make representations and to be heard in a local inquiry," said Das.

    He said with the redelineation, 11 new constituencies were being created from the existing 71 constituencies.

    The respondents' other counsel Datuk S. Ambiga said the notice put up by the EC was misleading that it might result in voters thinking that they were not affected and eventually decide not to make objection to the redelineation.

    "The EC is shifting the entire responsibility to the voters to find out the proposed recommendations on the redelineation exercise. They are shirking their responsibility to provide information," she said.

    Counsel for the Sarawak state government, Datuk J.C. Fong said there was no evidence that the respondents had made a complaint within their respective constituencies on the redelineation.

    The EC is appealing against the decision of the Kuching High Court on May 15, this year to declare that the commission's notice of its recommendations for the proposed redelineation exercise lacked details and ordered the EC to republish the notice.

    On May 25, this year, the High Court judge Yew Jen Kie made an additional order and declared the EC's notice of redelineation null and void after ruling that the notice was not in accordance with the 13th Schedule of the Federal Constitution.

    She ordered the EC to republish the notice of its recommendations for the proposed redelineation exercise "in full compliance with the provisions contained in the 13th Schedule of the Federal Constitution".

    The three-member Court of Appeal panel chaired by Datuk Mohd Zawawi Salleh deferred their decision to a date to be fixed.

    He said the court needed time to deliberate and perhaps would give the decision in one or two weeks' time after Aidilfitri, and the parties would be notified.

    -- BERNAMA
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  4. #34
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    Election Commission wins appeal on Sarawak boundary redraw notice

    BY JENNIFER GOMEZ
    Published: 7 August 2015 11:33 AM

    The Election Commission has successfully appealed against a High Court decision to set aside its redelineation exercise for Sarawak.The Election Commission (EC) today won its appeal to set aside a High Court decision nullifying the commission’s redelineation exercise for Sarawak, which increased the number of state seats from 71 to 82.

    In a unanimous decision, a three-man Court of Appeal bench ruled that EC's notice to redraw the state's electoral boundaries did not breach voters' constitutional rights and was in accordance with the 13th Schedule of the Federal Constitution.


    The Kuching High Court had in May declared EC's notice null and void and ordered the notice republished.


    High Court judge Yew Jen Kie, in her ruling on the judicial review brought by Batu Lintang assemblyman See Chee How and a voter in Ulu Baram, Pauls Baya, agreed that there was a serious and considerable lack of details in the January 5 notice to redraw the state's electoral boundaries for people who are affected to make a decision.


    Yew had said it was essential for EC to publish the electoral roll, the list of proposed changes and the areas affected so the public would know how they would be affected by the redelineation.


    But the appellate court said today it was factually wrong for the High Court to have said that the details of the proposed recommendations have not been disclosed by EC.


    "The High Court had stretched the meaning of the word 'effect' in Section 4(a) of the 13th Schedule beyond permissible limits.


    "There is a distinction between a requirement to state the effect of a proposed recommendation and a requirement to disclose details of the recommendation," judge Datuk Abdul Rahman Sebli said in reading out the full judgment.


    The court also held that the procedure prescribed in Section 4(a) read with Section 5(b) of the 13th Schedule did provide for an effective mechanism through which registered voters can ventilate their concerns and opposition to the proposed recommendations and to make their counter proposals.


    "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.


    "For the court to do so would be to usurp the powers of EC as provided by the Federal Constitution," said Rahman, who sat with Datuk Mohd Zawawi Salleh and Tan Sri Idrus Harun.


    He said the court also did not find that voters' rights to make a representation under Section 5(b) had been impaired by EC's failure to state detailed particulars of the nature mentioned by the High Court judge, adding that the respondents' allegation that their right to make a representation was impaired, is unsupported by evidence.


    "The allegation is based purely on belief," he said.


    Lawyer Datuk Dr Cyrus Das appearing for the respondents, said that they would appeal today's decision given the importance of the case.


    He also wanted to know what stage of the redelineation exercise EC was at, and asked if the polls body would be halting the process pending the respondents' appeal.


    This is so that they could decide on the necessity to file a stay application.


    Federal counsel Azizan Md Arshad informed the court that EC was in the process of preparing a report on the redelineation to be submitted to the prime minister.
    The court made no order as to costs. – August 7, 2015.
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  5. #35
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    Sarawak PKR to appeal decision on poll borders redrawing exercise

    BY DESMOND DAVIDSON
    Published: 7 August 2015 5:43 PM

    Sarawak PKR is planning to file an appeal against the Court of Appeal's decision to set aside the Kuching High Court's decision to nullify the Election Commission’s redelineation exercise for the state, says its vice-chairman See Chee How (pic).


    He said today this was because it appeared to them that the court did not fully appreciate the findings of the High Court as to the lack of detailed particulars.

    A plaintiff in the appeal brought by the commission, See said several matters, including the particulars he was arguing about, were not made available.


    He said, for example, no electoral roll was made available and that it could only be purchased at the cost of around RM4,500 – way beyond the financial means of most voters.


    “As the matter involves further interpretation of the various provisions in the constitution, it is proper that the matter be brought to the Federal Court for further deliberation and determination,” he said in a message on mobile app, WhatsApp.


    In its ruling today, the Court of Appeal’s three-man bench – consisting of Datuk Abdul Rahman Sebli, Datuk Mohd Zawawi Salleh and Tan Sri Idrus Harun – was unanimous in ruling that the commission's notice to redraw the state's electoral boundaries did not breach voters' constitutional rights and was in accordance with the 13th Schedule of the Federal Constitution.


    The Kuching High Court had in May declared the commission's notice null and void and ordered the notice be republished.


    See and a voter in Ulu Baram, Pauls Baya, had first sought a judicial review of the exercise in the Kuching High Court.


    They argued there was a serious and considerable lack of details in the January 5 notice to redraw the state's electoral boundaries for people who were affected to make a decision.


    The High Court agreed, which led to the appeal.


    See's legal counsel, Datuk Dr Cyrus Das, earlier in Putrajaya said that they would appeal today's decision given the importance of the case. – August 7, 2015.
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  6. #36
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    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 protects the right of an elector to make objections in section 5(b). Otherwise it will be rendered ineffective or illusory.


    A legal viewpoint on Sarawak boundary decision – Lim Wei Jiet

    Published: 9 August 2015 7:39 AM


    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.
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  7. #37
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    See Chee How and Pauls Baya's suit against the EC is pending Federal Court judgement. The judgement could potentially overturn the whole delimitation exercise if it is found in See's favour. Under such a situation, is the EC guilty of contempt of court?

    EC: New Sarawak boundaries can be used if passed



    BY JOSEPH KAOS JR

    PUTRAJAYA: The proposed new electoral boundaries for Sarawak can be used in the next state election provided Parliament approves it in time, said the Election Commission (EC).

    EC chairman Tan Sri Abdul Aziz Mohd Yusof said the commission had gazetted the re-delineation on Aug 21.

    “On our part, our duty is complete.

    “A report has been submitted to the Prime Minister. It is up to him to table it in the Dewan Rakyat for approval.




    “If it is approved before the state election, then the new seats can be used,” Abdul Aziz told reporters at the EC’s 58th anniversary celebration at its headquarters here.

    He said a simple majority in Parliament was needed to approve the re-delineation.

    If approved, the Sarawak state legislative assembly will see an additional 11 seats, bringing the total to 82.

    Abdul Aziz said the EC drew the recommended boundaries after the state assembly approved the increase of seats to 82.

    “This exercise is based on the state assembly’s decision. EC only decides where the seats should be,” he said.

    On Aug 7, the EC won its appeal to set aside a decision by the Kuching High Court to nullify its redelineation exercise for the state after it ruled that this was in accordance with the 13th Schedule of the Federal Constitution.

    On another matter, Abdul Aziz lauded the new National Consultative Committee on Political Financing, which was set up by the Government to study the regulating of political funding.

    “We were not invited to be part of the committee, but we are willing to be a part of it if invited.


    “This will help prevent accusations against political parties. Sometimes the source of funds could be black money.


    “So the committee will look into this and come up with the best way to legislate political funding,” he said.


    On Bersih 2.0, Abdul Aziz said he was only willing to work with the group if they were “independent”, but the chairman expressed scepticism on its partiality.


    “We have no problem working with them as long as they follow the law and can show that they are independent.


    “But they say we (EC) are kotor (dirty). What does it actually mean? And they say they are Bersih (clean), are they really clean?


    “Do you think they are independent? You can think for yourselves. Listen to what they say and watch how they behave,” he said.


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  8. #38
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    Greater scrutiny of EC delineation, after Sarawak setback, say PKR

    BY DESMOND DAVIDSON
    Published: 16 October 2015 8:30 AM

    Sarawak PKR vice-president See Chee How (centre, in black) denounces the Federal Court for dismissing the scores of legal questions his legal team had raised pertaining to the Election Commission's delineation exercise in Sarawak. – Facebook pic, October 14, 2015.
    Sarawak PKR vice-president See Chee How has vowed to continue with work to scrutinise and challenge the Election Commission’s questionable process to ensure “a better, fair and just electoral process".


    “The challenge to the EC exercise on delimitation and delineation on Sarawak might have come to an end, but the exercise in Sabah and Peninsular Malaysia will begin soon,” the opposition lawmaker said in his reaction to yesterday's refusal by the Federal Court to grant him, and a voter from Baram, Pauls Baya, leave to challenge the EC's constituency redelineation exercise.


    Federal Court president, Tan Sri Md Raus Sharif, who chaired a three-member panel, said the court could not interfere with parliamentary proceedings after the court was told by the EC's counsel, Senior Federal Counsel Amarjeet Singh, that the commission on Tuesday had handed over its report and recommendation on the exercise to the prime minister.


    Singh said as a result of the submission, the court no longer has the jurisdiction to determine the case.


    “The report at this stage is at the exclusive jurisdiction of the prime minister and the Dewan Rakyat,” Raus said when declaring the case academic.


    The Batu Lintang assemblyman believed otherwise and also felt it was outrageous for the Federal Court to dismiss the scores of legal questions his legal team had raised.


    “It is outrageous to say that the 15 questions, 14 of which are on Article 113 and the Thirteenth Schedule of the Federal Constitution, all raised for the first time in the Federal Court, did not meet the threshold requirement for leave to appeal to be granted.”


    There's enough of case authorities put in by us to show that the matter cannot be rendered academic, the Sarawak lawmaker said.


    “I am, of course, disappointed with the decision but most significantly, it is a missed opportunity of the Federal Court to deliberate on this issue of utmost importance, affecting all the voters and EC delineation and delimitation exercise, and it goes to the essence of parliamentary democracy in this country,” he said.


    Raus had also said he had found the 15 questions would not have any reasonable chance of success even if they were to be allowed through.


    See and Baya had sought to challenge the Court of Appeal’s August 7 decision that overturned a May 15 ruling by the Kuching High Court ordering the EC to republish its redelineation notice on grounds that it lacked details.


    The EC is seeking to create 11 new state constituencies, increasing the number seats in the state legislative assembly from 71 to 82.


    The Federal Court dismissed See and Baya's application for leave to appeal with no order as to costs.


    See was represented by Datuk Ambiga Sreenevasan while Datuk Dr Cyrus Das represented Baya. – October 16, 2015.
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  9. #39
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    Sarawak redelineation passed with 130 votes

    BY JENNIFER GOMEZ
    Published: 2 December 2015 5:04 PM

    Minister in the Prime Minister’s Department Nancy Shukri says the Sarawak redelineation exercise has been carried out in a fair and transparent manner. – The Malaysian Insider file pic, December 2, 2015.
    The Sarawak redelineation proposal by the Election Commission (EC), which will see the number of state seats increase from 71 to 82, was passed in the Dewan Rakyat today with a simple majority after a two-hour debate.


    Wrapping up the debate on the motion tabled by Datuk Seri Najib Razak this morning, Minister in the Prime Minister’s Department Nancy Shukri said the EC had carried out the process in a fair and transparent manner without interference from the government.

    The motion was supported by 130 MPs while 72 disagreed. – December 2, 2015.
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