PUTRAJAYA: The Court of Appeal has ruled that the Election Commission's (EC) decision to bar a registered voter from casting his ballot in the 2022 Johor state election due to Covid-19 quarantine restrictions was unlawful.
A three-member bench, comprising Justices Supang Lian, Wong Kian Kheong, and Ismail Brahim, found that the EC violated RK Tamileswaaran's constitutional right to vote under Article 119 of the Federal Constitution by preventing him from exercising this right.
"The first respondent (EC) committed an 'error of law' or an illegality in this case by denying the appellant's (Tamileswaaran's) right to vote in the election," Justice Wong said in delivering the court's unanimous decision.
He noted that the High Court had erred in ruling that the EC's duty under Article 113 of the Federal Constitution to conduct elections was subject to the Covid-19 prevention SOP and the Prevention and Control of Infectious Diseases Act 1988 (PCDA).
"The SOP and PCDA cannot restrain the EC's duty to conduct elections," he stated.
Justice Wong issued a certiorari order to quash the EC's decision and granted several declarations sought by Tamileswaaran. The court allowed Tamileswaaran's appeal to overturn the Dec 7, 2022, decision by the High Court, which dismissed his judicial review. No orders were made as to costs.
While acknowledging that courts have the discretion to award monetary compensation for the breach of the right to vote, Justice Wong said no constitutional compensation would be granted in this case. This was because the EC's decision was made based on the SOP in the interest of public health and safety, and its officers acted in good faith.
Justice Wong also held that the SOP and the PCDA regulations, created by the Director-General of Health and the Health Ministry, respectively, are subsidiary legislation and not Federal law or an Act of Parliament.
The court dismissed arguments submitted by the EC and the government, represented by senior federal counsel Mohammad Al-Saifi Hashim and Fauziah Daud, that public policy considerations on public health and safety during the Covid-19 pandemic were sufficient grounds to dismiss the judicial review.
"A voter's right to vote is a constitutional right and not a statutory right," Justice Wong added.
In his judicial review application, Tamileswaaran claimed he was on the sixth day of his Covid-19 quarantine and had tested negative on a self-administered test. He stated that he was barred from entering the polling station because his MySejahtera application displayed a high-risk status and he had not obtained permission from the district health officer to vote.
The court's decision was delivered via online proceedings. Tamileswaaran was represented by lawyers New Sin Yew and Nur Izni Syazwani Ahmad. – Bernama
