Written by: Averroes 313
(1.0) Introduction
The Kuching High Court ordered the Federal Government and the Election Commission (EC) to implement Undi 18 by 31st December 2021. It came after Judicial Commissioner (JC) Alexander Siew How Wai made the order to allow the judicial review brought by five Malaysian youths to expedite the amendment toward the Federal Constitution, to lower the voting age from 21 to 18. This was because, they had 'legitimate expectation' for the youths' voting rights to be enforced.
The decision was made through online-proceeding in the new normal. Earlier in 2021 on 4th May, five Malaysian youths from Sarawak, aged between 18 to 20 filed the Judicial Review application, which they named the Prime Minister (Mahiaddin) at the time, Federal Government and Election Commission as respondents.
Their lawyers were Simon Siah and Clarice Chan. The Senior Federal Counsels were Shamsul Bolhassan and Azizan Md Arshad.
The five applicants in this case were, Ivan Alexander Ong, Viviyen Desi George, Tiffany Wee Ke Ying, Chang Swee Ern and Sharifah Maheerah Syed Haizir. As a result, more youths are able to exercise their constitutional rights when they vote in the general elections. It is a way for them to voice their concerns and determine the future of the country.
In effect, in Sarawak, this would allow another 125,000 to 135,000 Sarawkian youths to vote in the next state election, which is allowed after the localised Emergency in Sarawak would be lifted on 2nd February 2022.
(1.1) Comments by Muar MP
The former youth and sports minister commented that the ruling was aligned with the constitutional amendment for lowering the minimum voting age, as it was done unanimously back in 2019. It was passed in July 2019 by both the two houses of Parliament, Dewan Rakyat and Dewan Negara.
He also urged that the government would not appeal to the decision, rather uphold and heed all legal alternatives as this concerns the welfare and suffrage rights of the people.
(2.0) Legal Analysis
The JC states that, they compel and granted the order of mandamus upon the respondents, the EC and Federal Goverment to 'take all necessary' measures for section 3 of the Constitution (Amendment) Act 2019 (Undi 18) to be enforced as soon as possible, by 31st December 2021. It also paves way for automatic voter registration, which the current antediluvian system requires 'manual' registration.
As a result, section 3 of Undi 18 has two paragraphs;
Paragraph (a) stipulates that article 119(1)(a) of the Federal Constitution (FC) lowers the age from 21 to 18.
Paragraph (b) stipulates that article 119(4)(b) of FC allows automatic voter registration to replace the previous manual system.
Also, both section 3(a) and 3(b) of Undi 18 will only have legal effect, if by virtue of section 1(2) of Undi 18 provides that;
"Section 3 of this Act comes into operation on date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette."
Both the paragraphs are under the same section 3 of Undi 18, which is supposed to be enforced simultaneously. This is apparent under section 43(b) of the Interpretation Act 1948 and 1967 (IA). It was clear by Parliament's intention that both paragraphs are to be enforced on the same date.
However, even if the Yang di-Pertuan Agong (YDPA) determines the date, it is actually the Prime Minister (PM) or the collective advice of his Cabinet ministers (article 40 of the FC) to set the date. This was already compelled by the court toward the PM and Cabinet through the said mandamus and certiorari. It is part of their duty to advice the YDPA on what date is Undi 18 to be implemented.
The court could order a mandamus against a minister as the Federal Court decision in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641, that according to Paragraph 1 of the Schedule to Courts of Judicature Act 1964, mandamus is a command issued by court to an authority to perform a public duty placed on them by law and is one that is statutory. It may be issued against 'any person or authority' which includes a Minister of a government.
The JC also allowed order of certiorari to quash the decision of the Prime Minister, the Federal Government and the EC to defer the implementation of the amendment to 'after September 2022'. The Kuching High Court found that 'deferring the implementation of the amendment was manifestly irrational and illegal'. The court also enunciated that the respondents failed to 'act with all convenient speed'.
Even when section 1(2) of Undi 18 does not prescribe the particular date, that is 31st December 2021 or July 2021, though when reading section 54(2) of the IA;
"Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises."
If the implementation is still deferred, then it would 'adversely affect Malaysian youths'. This is a real and genuine interest. For the respondents to rebut the 'convenient speed' or 'as soon as possible within reasonable time' depending on the facts and circumstances of each case, it is for the 'public authority to justify or prove reasons why there needs to be the delay'.
The respondents failed to justify when the court scrutinised the affidavit that Takiyuddin Hassan, former law minister even told media that the amendments could be implemented by 'July 2021' and that they did not dispute this claim in court.
Though, this was not done as the government was given '2 years since 2019' to enforce the amendment. Even if it is 'only an estimation' determined when Undi 18 is implemented, this was still contrary to 'convenient speed', because an estimation could be used as an excuse to further postpone or extend the implementation.
Several times, the government mentioned that Undi 18 is to be implemented, which takes an estimate of 18 to 24 months and 'July 2021' was the due date. Suddenly, they became inconsistent and mentioned that it is to be implemented after September 1st, 2022. The respondents could not explain how the movement control order (MCO) affected the delay of Undi 18.
The respondents argued that, before Undi 18 is to be implemented, there are other elections laws that are pre-requisites. However, the court found that the amendments to other election laws were minor or 'mere regulations' and could be done before the general elections at any time. This included the Election Offences Act which amendments to it is only minor.
(3.0) Conclusion
To conclude, Malaysian youths should be given the right to suffrage and cast in the ballot box to determine the future and outcome of the nation. They have attained the age of majority and could perform many functions and activities. Some have become young entrepreneurs, have their own family and children, drive their own cars, own property and entered into job employments.
Many other countries in ASEAN, such as;
i) Indonesia with the lowest voting age at 17 years old,
ii) The 1987 Constitution of the Republic of the Philippines, Article V (Suffrage), Section 1 provides the age of 18 years old,
iii) In Thailand, the voting age is 18 years old
iv) The National Election Committee of Cambodia states, that there are '18' to 35 year old voters.
(4.0) References;
Bernama. (September, 2021) High Court orders EC to implement Undi 18 by Dec 31. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/09/724155/high-court-orders-ec-implement-undi-18-dec-31
Ling, S. (September, 2021) Decision to delay Undi18 quashed. Retrieved from, https://www.thestar.com.my/news/nation/2021/09/04/decision-to-delay-undi18-quashed
Ashman Adam. (September, 2021) After court win, Syed Saddiq says Undi18 will rock Malaysian politics. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/03/after-court-win-syed-saddiq-says-undi18-will-rock-malaysian-politics/2002750
Yen, H. (September, 2021) Court orders govt to implement Undi18 law this year. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/09/03/court-orders-govt-to-implement-undi-18-law-this-year/
Ling, S. (September, 2021) Undi18: Kuching High Court orders Federal Govt to implement lowering of voting age by Dec 31. Retrieved from, https://www.thestar.com.my/news/nation/2021/09/03/undi18-federal-govt-ordered-to-implement-lowering-of-voting-age-by-dec-31
Lim, I. (September, 2021) High Court orders EC to implement Undi18 by Dec 2021, says govt’s delay to Sept 2022 irrational, illegal. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/03/high-court-orders-ec-to-implement-undi18-by-dec-2021-says-govts-delay-to-se/2002714
Development Associates. (n.d) Republic of Indonesia. Retrieved from, https://aceproject.org/ero-en/regions/asia/ID/indonesia-voter-registration-case-study.pdf
Orathai Kokpol. (n.d) Electoral Politics in Thailand. Retrieved from, https://library.fes.de/pdf-files/iez/01361009.pdf
Chansopheakvatey Vann. (July, 2018) Can Cambodia's young voters end Hun Sen's long rule? Retrieved from, https://www.dw.com/en/can-cambodias-young-voters-end-hun-sens-long-rule/a-44822993
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