KUALA LUMPUR, Dec 13 — Three youths in Sarawak today failed at the High Court in Kuching to get leave for the court to hear their legal bid to be allowed to vote in the Sarawak elections this Saturday.
The three youths’ lawyer Simon Siah confirmed the decision today by High Court judicial commissioner Alexander Siew How Wai.
It is understood that the youths’ application for leave for judicial review hearing was dismissed with no order as to cost, as the court ruled that the trio had failed to meet the test required for leave to be granted.
In lawsuits filed via a judicial review application where the courts are asked to review the actions or decisions of a public body or the government, the applicants have to first seek leave for judicial review, or to seek permission from the courts for their lawsuit to proceed and be heard.
In other words, the three youths today failed to cross the first hurdle that would be necessary for their lawsuit to be heard. This would mean their lawsuit — to be able to vote in the Sarawak polls this week — cannot proceed.
When asked to comment on the outcome of today’s court hearing, Siah noted that youths aged 18 to 20 would have been able to join the Sarawak state elections this Saturday as voters, if the EC had implemented earlier both the automatic voter registration and the Undi18 constitutional amendment which brought down the minimum voting age from 21 to 18.
“Obviously, we are very disappointed. The three applicants actually also mentioned that they are very disappointed because they could not vote in the coming state elections which will decide the next five years of their life as well in the state, which is very unfortunate.
“Honestly, this could have been done if the AVR and the Undi18 was put in place In July 2021 and they would be able to cast their votes and have their voice counted.
“But in any event, we try our best, we did what we can to test the law to its limit and we are proud that there are so many young people who are concerned and willing to come out and be part of this process.
“Obviously I don’t think this is the end for Undi18, definitely the Undi18 group will definitely be trying to campaign furthermore so that the young people can be more involved in policy-making and campaigns,” he told Malay Mail.
Asked if an appeal will be filed against the High Court’s decision today, Siah noted it would not be possible to have any appeal heard before the voting day of December 18 and that this would make any such appeal academic by the time it is heard.
“It is unlikely that we will be filing an appeal, because then the appeal would have been rendered nugatory and became academic, because the polling day would be on December 18, tomorrow would be the early voting already, so realistically not possible for us to get the hearing before December 18 also,” he said.
On December 7, three Sarawak youths — namely 18-year-old Avril Clarice Chin Ning, Ivan Alexander Ong and Addam Johanson Anak Jeremy Shayne who are both aged 19 — had filed a lawsuit via judicial review against the Registrar of Electors for Sarawak and the Election Commission of Malaysia.
In this lawsuit, the three youths had sought for a number of court orders, including for a declaration that they are entitled to vote in the Sarawak elections with the polling date on December 18.
Among other things, they were also seeking via this lawsuit for the quashing or cancellation of the election notice which set December 18 as the polling date for the Sarawak state election.
The Election Commission’s November 25 election notice had also set out the December 6 nomination date and the December 14 advance voting date for the Sarawak state election
The three youths had also asked for the court to stay the enforcement of the election notice — or effectively to suspend the Sarawak elections due for voting day on December 18 — until the judicial review application is heard, if the court were to grant the leave for judicial review.
The events before the filing of the current lawsuit
Ong is also part of a group of five youths in Sarawak who had filed a lawsuit previously to challenge the EC’s decision to delay the implementation of Undi18 from the initial promised date of July 2021 to after September 1, 2022.
On September 3, the High Court in Kuching, Sarawak had ruled in the five youths’ favour, giving a court order to quash the government’s and EC’s decision to defer the implementation of the constitutional amendment — which covers both Undi18 and AVR — to after September 2022.
High Court judicial commissioner Alexander Siew How Wai had also on September 3 gave a court order that required all necessary steps to be taken for the constitutional amendment which includes Undi18 to come into operation as soon as possible and by December 31, 2021.
The federal government later decided not to appeal the High Court decision and directed the EC to give effect to the September 3 court ruling.
In a government gazette published on December 1, Cabinet secretary Tan Sri Mohd Zuki Ali announced that the Yang di-Pertuan Agong had appointed December 15 as the date when the constitutional amendment—which covers both AVR and Undi18 —- would come into force.
Even though the government gazette meant all Malaysians youths aged 18 to 20 would be eligible to be voters starting from December 15 and would be automatically registered as voters without having to apply, Sarawak youths in this age group—such as the three who filed the lawsuit last week—would not be able to cast votes in the Sarawak state elections this Saturday.
Among other things, this is because the Election Commission’s November 24 election roll notice had already determined that the list of registered voters or electoral rolls to be used are the principal electoral roll for 2020 gazetted in May 2021, and the supplementary electoral rolls for 2021’s first quarter and second quarter respectively gazetted on May 24 and August 26 this year.
Sarawak youths aged 18 to 20 would not be possibly part of those electoral rolls stated as the constitutional amendment for Undi18 only kicks into effect from December 15 this year.
Being directly affected and claiming that they had been deprived of the right to vote in the Sarawak state elections, the three youths then filed the lawsuit.
Other orders that the three youths were seeking in this lawsuit were for a declaration that they are entitled to vote in any election held after December 15 for Sarawak state seats or Sarawak parliamentary seats, as well as a court order to compel the EC to urgently and immediately revise and gazette the supplementary electoral roll to include the trio and other Malaysians entitled to vote in order to enable them to vote in the upcoming Sarawak state election.
Following the High Court’s decision today to dismiss the trio’s application for leave for judicial review and if an appeal is not filed by the youths, this will mean that the lawsuit will not proceed.
The Sarawak state elections this Saturday involves 82 state seats, and will determine who will be the new state government that will govern the state for a five-year term.
