UNDI18: Delays in Registration of Young Voters – Victorious Action against the Government and Prime Minister

After several years of campaign and activism by the UNDI18 youth movement, the Constitution (Amendment) Act 2019 (“CAA 2019”) was finally passed by the Federal Government unanimously on 16^th July 2019 to lower the minimum voting age to 18 in Malaysia.

By way of Section 3 of the CAA 2019, the Government has introduced 2 amendments to Article 119 of the Federal Constitution (“FC”), namely: (1) lowering of voting age; and (2) automatic voter registration for the citizens of Malaysia. In brief, the amendments are as follows:-

With these amendments, Malaysian citizens who are aged 18 and above will now be entitled to vote and they will also be automatically registered as voters.

The Filing of the Suit against the Government

The passing of the CAA 2019 was well received and greatly applauded by the general public as well as politicians. However, shortly after the passing of the CAA 2019, a series of events transpired in our nation which created a number of obstacles that delayed the implementation of the amendments introduced by the CAA 2019.  Needless to say, these obstacles were not well received.

Sometime in May 2021, several individuals (hereinafter referred to as the “Applicants”) commenced a Judicial Review[1] application in the Kuching High Court[2] against the Government of Malaysia, the Prime Minister and the Election Commission (“Respondents”) due to the delays mentioned above. So, where did things go wrong?

Passing an Act is One Thing, Implementation is Another

Generally, an Act of Parliament comes into force after it is published in the Gazette unless there is an express provision in the Act which states otherwise (section 19(1) of the Interpretation Acts 1948 and 1967 [“Interpretation Act”]). Here, it is apposite to point out that section 1(2) of the CAA 2019 stipulates that the amendments under section 3 of the CAA 2019 will come into operation on a date to be appointed by the YDPA by notification in the Gazette.

Therefore, although the CAA 2019 was passed and subsequently published on 10^th September 2019, the amendments did not come into force as no date has been appointed by the YDPA in the Gazette.

From ‘July 2021, the Latest’ to September 2022 – A Delay of 14 months

Several weeks after the passing of the CAA 2019 and right up to March 2021, the Federal Government and the Election Commission made numerous statements stating that the implementation of the amendments to the FC would be done by July 2021, at the latest. However, in March 2021, the Election Commission announced a deferment of the implementation of the said amendments to September 2022, at the earliest.

Aggrieved, the Applicants brought the Judicial Review application, seeking for, among others, the following reliefs:-

a) an order of certiorari to quash the decision of the Respondents to defer the implementation of the amendments to after September 2022; and

b) an order of mandamus to compel the Respondents to implement, by July 2021 or forthwith:

• both the lowering of voting age and automatic voter registration (entire section 3); or
• alternatively, the lowering of voting age (section 3(a)) first if the automatic voter registration (section 3(b)) is not ready for implementation.

The Respondents opposed the Judicial Review by arguing that:

• the various things or tasks necessary for the implementation of the amendments are neither in place nor completed (for example, the rectification of incomplete or inconsistent addresses of the voters);
• the Government’s decision to defer the implementation was consequent to the Election Commission’s latest estimation; and
• the Government has no power under the law to appoint different dates for the operation of section 3(a) and section 3(b). The EC also stated that the Movement Control Order (MCO) had affected its plans and preparation.

Decision of the Court

On 3^rd September 2021, the Kuching High Court allowed the Judicial Review application and granted the certiorari order as mentioned above and the mandamus order compelling the Respondents to ensure that section 3 of the CAA 2019 comes into operation by 31^st December 2021. The grounds relied on by the Court are explained below.

Locus Standi of the Applicants

The Applicants, being Malaysian citizens of age 18 to 20 would be ‘adversely affected’[3] by the decision of the Respondents to delay the implementation of section 3 of the CAA 2019. Therefore, they are clearly parties who are entitled to commence the Judicial Review against the Respondents.

Separate Implementation Dates

The Respondents contended that it is not within their powers to appoint different dates for the operation of section 3(a) (lowering of voting age) and section 3(b) (automatic voter registration), as prayed for by the Applicants as an alternative relief.

This is because such a relief, if allowed, would run contrary to section 43 of the Interpretation Act which clearly provides that there is no power to appoint different implementation dates for different provisions unless an express provision is made to that effect. The Respondents referred to other Acts of Parliament where such power was expressly stated, unlike section 1(2) of the CAA 2019 herein.

The Court agreed with the contention of the Respondents that they have no power to appoint different dates for the implementation of section 3(a) and section 3(b). Therefore, the alternative relief sought by the Applicants were untenable.

Duty of the Cabinet to Advise the YDPA

Does the Cabinet Owe a Duty to Advise the YDPA?

With great power comes great responsibility. This begs the question: why are the Respondents responsible for the delay when, by virtue of section 1(2) of the CAA 2019, the power to appoint the date of implementation for section 3 of the CAA 2019 lies in the hands of the YDPA (and not the Respondents)?

The Court held that although it is the YDPA who appoints the implementation date of section 3 of the CAA 2019, it is clear under Article 40 of the FC that the YDPA is to act in accordance with the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. Therefore, section 1(2) of the CAA 2019 effectively imposes a non-discretionary duty on the Cabinet to advise the YDPA to appoint the said implementation date.

When Does the Cabinet Have to Advise the YDPA?

The CAA 2019 is silent as to when the Government is required to advise the YDPA in relation to the implementation date. However, the Applicants relied on sections 54(2) and 108 of the Interpretation Act which state that where no time is prescribed within which anything shall be done, such thing shall be done ‘with all convenient speed’. The High Court agreed with the Applicants and held that the Cabinet must advise the YDPA and complete the tasks necessary to be in a position to do the same ‘with all convenient speed’.

Based on previous cases, it is clear that the phrase ‘with all convenient speed’ means as soon as possible or within reasonable time and it varies depending on the facts and circumstances of the case. More importantly, where there has been a delay, the onus is on the public authority (the Respondents), to explain the delay in their affidavits.

Have the Respondents Acted ‘With All Convenient Speed'?

The Court held that the Respondents had failed to do so due to the following reasons:

a) Several weeks after the passing of the CAA 2019, ie. as early as September 2019 up until March 2021, the Respondents had repeatedly stated and affirmed that the date of implementation of the amendments would be by July 2021. As such, the Respondents had acted at their own peril.

b) The following issues raised by the Respondents for the delay were known at the outset:-

• The MCO or the varied forms of MCO were already in place from March 2020 right up to March 2021 during which the Respondents remained unwavering that they are on track to implement the amendments by July 2021. In any event, the Respondents had failed to explain how the MCO could have affected their plans and preparation.
• Based on the earlier public statements made by the Respondents, they clearly were cognisant of the issues relating to incomplete or inconsistent addresses which will affect the implementation of automatic voter registration.
• The amendments of regulations and statutes governing election, if necessary, could be done at a later stage prior to the next election. In other words, these amendments need not precede the implementation of section 3 of the CAA 2019. If there is indeed such a need, these amendments should have been made when the CAA 2019 was passed in July 2019, ie. more than 2 years ago.
• It simply makes no sense for the Respondents to repeatedly maintain that they are on schedule to implement the amendments by July 2021 and then, just 2 weeks later, seek for an extension of at least 14 months.
• The Respondents’ case was further undermined by the statements subsequently made by the Minister of Law at the material time which suggested that the Government was reverting to the original timeline to implement the amendments, ie. July 2021.

Powers of the Court to Grant the Reliefs Sought

The legislations which empower the courts to grant mandamus are: (1) the Courts of Judicature Act 1964 (“CJA”); and (2) the Specific Relief Act 1950 (“SRA”).

Section 44 of the SRA provides that a Judge may make an order requiring any specific act to be done by ‘any person holding a public office’. However, in Loh Wai Kong v. Government of Malaysia & Ors [1978] 2 MLJ 175, the phrase ‘any person holding a public office’ in section 44 of the SRA has been interpreted as NOT referring to a Minister. Therefore, the Court in Loh Wai Kong determined that such an order cannot be issued against a Minister.

However, by virtue of section 25(2) of the CJA and paragraph 1 of the Schedule to the CJA, the High Court has the additional power to grant a writ of mandamus against ‘any person or authority’. This was held to include a Minister by the Federal Court in Minister of Finance, Government of Sabah v. Petrojasa Sdn Bhd [2008] 4 MLJ 641.

What about section 44 of the SRA then? The proviso to section 25(2) of the CJA itself provides that the exercise of the additional powers must be “in accordance with any written law”. This seems to suggest that the courts’ power under Paragraph 1 of the Schedule to the CJA is subject to section 44 of the SRA which prohibits granting an order against a Minister.  However, the Federal Court in Petrojasa explained as follows:

“[28] These powers are additional powers, ie, additional to any other power given by other written laws. Being additional powers they can only be more than, not limited to, what has already been provided by other laws. The proviso to s. 25(2) uses the words "in accordance with any written law or rules of court relating to the issue." I am of the view that the use of the word "in accordance" and not "subject to" merely refers to the procedural aspects…”

Conclusion

With this landmark decision, approximately 1.2 million youths aged between 18 and 20 will now be given the constitutional right to vote and 4.4 million citizens who are at least 21 years but unregistered will be automatically registered as voters for the next election.

This marks a significant milestone towards the advancement of our democracy system as more people will be eligible to vote and the voting process will become much simpler with automatic registration, which may in turn lead to higher voter turnout. A democratic system can only be effective and achieve its purpose when citizens have access to vote and when there is a higher voter turnout.

This shows the importance of Judicial Review applications, which is a tool that can be used by the public to effectively challenge decisions made by the Executive or public authorities. Judicial Review enables our courts to exercise supervisory jurisdiction over the Executive. It is a fundamental facet of a proper democracy as the Executive is not allowed to do whatever it pleases without any check and balance, especially against the people that voted them into office in the first place.

While there may be concerns that the powers of Judicial Review entrusted to the courts will effectively allow the judiciary to encroach into the business of the Government, it must be emphasised that such powers are essential to the constitutional role of the courts as a check and balance mechanism to prevent misuse of powers by the Government and the exercise of such powers do not in any way constitute judicial supremacy.[4]