KUALA LUMPUR, July 27 — A High Court judge today asked why the Malaysian government had in March 2021 announced the delay of enforcement of Undi18 or letting 18-year-olds vote to September 2022 by citing "practical difficulties”, when the government had for almost two years regularly said it could be done by July 2021.

Judicial commissioner Alexander Siew How Wai, sitting in the High Court in Kuching, Sarawak had raised this question when seeking clarifications from the Attorney General’s Chambers’ (AGC) representatives during a court hearing.

Today was the High Court’s online hearing of the five Malaysian youths’ lawsuit or judicial review application to seek for the immediate enforcement of a 2019 constitutional amendment which had lowered the minimum voting age in Malaysia from the initial 21 years old to the new age of 18.

The five youths — all aged 18 to 20 — had named the lawsuit’s three respondents as Tan Sri Mahiaddin Md Yasin in his capacity as prime minister, the government of Malaysia, and the Election Commission.

In objecting to the five youths’ lawsuit, the AGC’s senior federal counsel Shamsul Bolhassan said the respondents had never said they did not want to implement the constitutional amendment, but said it was due to "circumstances” and "practical difficulties in dealing with millions of names”.

At this point, the judicial commissioner interjected to ask for further explanation, noting that the constitutional amendment was done two years ago in 2019, and that both the EC and government had issued statements at various intervals since then to assure Malaysia’s youths that the lower voting age would be implemented by July 2021.

"And as recently as March 2021, the deputy EC (chairman) came out to say that everything is on track, all systems are ready and it would be done by July 2021.

"So I think the question that all the young people that would be disenfranchised, if this thing is delayed further, is what has happened since March 2021 when the deputy EC said everything is ready? What has happened since then to have caused the EC now to say that the earliest we can do it is September 2022?

"The practical difficulties — surely that would have been taken note of when the Act was enacted in 2019?” he asked, referring to the Constitution (Amendment) Act 2019 that amended the Federal Constitution’s Article 119’s minimum voting age to 18.

The EC deputy chairman Azmi Sharom was on March 10, 2021 reported as saying that all EC systems are "on track” to lower the voting age to 18 and to implement automatic voter registration.

However, Dewan Negara president Tan Sri Rais Yatim was reported saying the next day on March 11, 2021 that the country was not ready for the lower voting age of 18, while the EC chairman Datuk Abdul Ghani Salleh on March 25, 2021 said it is expected to be done after September 2022.

While acknowledging Shamsul’s suggestion that the practical difficulties may not have been immediately apparent during the constitutional amendment in 2019, the judicial commissioner today noted that regular assurance was made by both the EC and government in the two years since then that it could be implemented by July 2021.

Shamsul then highlighted that the latest statements had referred to the Covid-19 pandemic and the movement control order, but the judicial commissioner said the Malaysian youths would still want to know more.

"The MCO was announced in March 2020, so subsequent to the MCO in March 2020, the government and the EC have also come out with statements to reassure the youths that everything is proceeding as planned.

"So what has happened since March 2020 to cause the EC in March 2021 to then say that because of the MCO we will be delayed, earliest is September 2022, and even then we cannot give a guarantee? If that statement had been made in March 2020, perhaps the young people would understand, but with this kind of change of position in 2021, a year after MCO, perhaps the young people want an explanation,” the judge pointed out during the hearing through the Zoom video-conference app.

Senior federal counsel Shamsul Bolhassan (right) speaks to journalists outside the courtroom at KL High Court in Kuala Lumpur January 27, 2017. — Picture by Yusof Mat Isa

In this court case, the government’s view is that the constitutional amendments of lower voting age of 18 and automatic voter registration (AVR) have to be done together, while the view of the five Malaysian youths is that the lower voting age of 18 can be implemented immediately as those aged 18 to 20 can still manually apply to be registered as voters while waiting for the AVR to be implemented separately at a later date.

When asked for explanation by the judge, Shamsul said the practical difficulties faced by the government is that the immediate implementation of the constitutional amendments would result in the automatic registration of Malaysians as voters once they hit the age of 18, but in a situation where there are still incomplete records of their residential locations and that there would be difficulty assigning them their voting location.

"So you would have millions of voters, including those above 18. And we have those who have incomplete addresses. With these incomplete addresses, where are you going to place them? Where are their localities? Those are all issues,” he said, adding that the respondents had in affidavits said an ongoing process of liaising with the National Registration Department is being undertaken.

"With this MCO kicking in last year, so there was a delay, in fact, the government is saying, ‘EC, please do something’. It’s not that they are backtracking, in fact they are taking steps to go back to stakeholders, the political parties to discuss how to implement this in view of these problems,” Shamsul said.

Shamsul said the fastest and easiest solution would be to go through Parliament to make an amendment to the Constitution (Amendment) Act 2019, in order to enable the lower voting age of 18 and AVR to be implemented separately.

The judge suggested that Malaysian youths would be reassured if the government could state a definitive date in court documents for when it would undertake a solution such as making a fresh amendment, noting that this could also help show that the government is acting in good faith and trying its best to solve the problem.

Earlier in the hearing, the five Malaysian youths’ lawyer Clarice Chan argued that the rule of natural justice would require the government to first hear the youths out if the government intended to delay or sit on their voting rights.

Chan said the government’s court affidavit which said the EC needs to hold consultations and engagement sessions with stakeholders to discuss how to speed up the lower voting age’s implementation was a "flawed” procedure, arguing that this should have been done before the constitutional amendment in 2019 and not after the amendment.

"It has been done the other way around, engagement after passing of Article 119. We say this is procedural impropriety, this is illegal and irrational,” she argued.

She also said the EC’s role is to supervise the registration of voters and not to impose their own interpretations on the constitutional amendment by viewing both the lower voting age and AVR as interdependent, arguing: "It cannot make its own interpretation of Article 119 and decide that the cleaning of electoral roll and verification of voters on the electoral roll takes precedence over the registration of new voters pursuant to Article 119. That is illegal, irrational and we say that is in excess of the jurisdiction, power and authority by the third respondent (EC).”

Chan argued that the decision by all three respondents to delay implementing the constitutional amendment was done in "bad faith”, as they were "swayed primarily by considerations of convenience and ease” for the EC such as the considerations of the complicated and tedious task of verifying and cleaning the electoral roll or the record of registered voters.

Arguing that this was in bad faith as such considerations of convenience are irrelevant for the decision on when to implement the lower voting age, Chan said: "It must be reminded that we cannot sacrifice the rights of the applicants on the altar of convenience.”

"In summary, Article 119 as amended carries the full force and authority just like any other provision in the Federal Constitution. That the respondents have delayed and essentially refused to enforce the rights of applicants under Article 119 as amended, amounts to an irrational decision, illegal decision, decision made in excess of powers and decision in bad faith,” she argued, before asking the High Court to grant the court orders sought by her clients.

Chan had also highlighted the urgency of the court case, as the Sarawak state election has to be held within 60 days once the nationwide Emergency is lifted, suggesting that this could mean polls as early as late September.

After hearing the arguments from both sides, the High Court fixed August 11 for parties to exchange written replies, and fixed August 13 as the next hearing date for clarification on some legal points.

The five Malaysian youths — who are also part of the Undi18 movement that successfully advocated for the lower voting age and include four Sarawak-born youths — who filed this lawsuit are Ivan Alexander Ong, Viviyen Desi Geoge, Tiffany Wee Ke Ying, Chang Swee Ern and Sharifah Maheerah Syed Haizir. Their rights to vote are directly affected as they are aged 18 to 20.

They had filed the lawsuit on May 4, and had obtained leave for judicial review on May 28, which led to today’s hearing of the judicial review application on its merits.

Chang was present in the online hearing, while Nadia Malyanah and Murnie Hidayah were present to represent the Undi18 movement.

Senior federal counsels Azizan Md Arshad and Raja Shahril Anuar, as well as Federal Counsel Jessica Lee also represented the three respondents, while lawyer Simon Siah also represented the five youths.

Separately, 18 Malaysian youths also aged 18 to 20 and also part of the Undi18 movement had on April 2 filed a similar lawsuit in the High Court in Kuala Lumpur, and had on June 17 won leave for judicial review. Their judicial review hearing is currently scheduled to take place on August 23.