AUGUST 23 — The delay to lower the voting age can only be described as a flagrant attempt to disenfranchise young voters. Where the amendment initially sparked enthusiasm and unanimous support across Parliament, the surprising hesitance in its implementation signals a blow to Malaysia’s democracy.
This article will assess whether the actions of the prime minister, the government of Malaysia and the Election Commission created a legitimate expectation regarding the timeline of bringing Undi18 into effect, and whether they had a valid basis to allow for this expectation to be frustrated.
It concludes that a legitimate expectation had been established and any further delay to bring effect to the Act can justifiably be made the basis of legal challenge.
Facts
The Constitution (Amendment) Act 2019 (“Undi18 Act”) was unanimously passed in Parliament in July 2019. Malaysians rejoiced at the bipartisanship of the new government and its recognition of the youth as an important electoral component.
The Undi18 Act consists of three parts, each strengthening the electorate:
- Section 3(a) lowers the minimum age for voters in federal and state elections from 21 years old to 18 years old (“Undi18”)
- Section 3(b) provides for automatic voter registration for Malaysians (“AVR”)
- Section 4 refers to the lowering minimum age for elected representatives in federal and state elections from 21 years old to 18 years old
Upon enacting the law, the Pakatan Harapan government and Election Commission (EC) expressed their joint view that the implementation of the Act was due to be completed by July 2021 at the latest.
Even after the change in government in March 2020, this timeline was maintained by the new Perikatan Nasional government.
However, in March 2021, the EC announced that because it planned to implement AVR and Undi18 simultaneously, the Undi18 Act would only come into effect in September 2022.
This delay triggered uproar and heightened fears that the government was attempting to ignore and silence the youth amid an unstable political climate.
In response, members of the Undi18 organisation applied to judicially review the government’s refusal to bring into force the Undi18 Constitutional amendment by July 2021.
Their application was made against the prime minister, the government of Malaysia, and the EC (“the Respondents”) in the High Court of Kuala Lumpur and High Court of Kuching.
The remainder of this article will evaluate the key criteria - “breach of a legitimate expectation” – as the ground for this judicial review. Given that the Malaysian Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-Sama Serbaguna Sungai Gelugor [1999] 3 MLJ 1 accepted the English approach to legitimate expectations given the system’s more developed case law on the doctrine, and this article will also refer to UK precedent.
What is a ‘legitimate expectation’?
Politicians have a reputation for making empty promises and the rakyat reluctantly are forced to accept false promises.
However, “legitimate expectation” judicial reviews challenge that general acceptance and understanding, forcing legal accountability for actions and statements made by politicians and government.
Notably, the expectations may not be codified in laws, but nonetheless create an actionable basis in judicial review.
Thus, the judiciary serves as an overseer of the executive by ensuring that, in specific circumstances, the government cannot simply resile from its promises.
Judicial review for breach of legitimate expectations is grounded on principles of fairness. Namely, it would be unfair to allow a public body to not fulfil a promise made to affected individuals/groups.
The review process also considers broader principles of legal certainty – individuals should be able to trust and rely on what public authorities tell them.
However, the proximity of many such "promises" to matters of politics makes the courts cautious to enforce these promises without strong justification.
What is necessary to show a “legitimate expectation”?
The key consideration in legitimate expectation review is how the statements would be reasonably understood by the relevant party to whom it was made. The strength of the undertaking must be “clear, unambiguous and devoid of relevant qualification” as held in R v Inland Revenue Commissioners, ex p MFK Underwriting Agencies Ltd [1990].
A key factor is the authority of the person making the statement, recognising the need for public representatives to act responsibly and reliably. And thus, the converse is also true. For example, in R v Department of Education and Employment, ex p Begbie [2000], undertakings by opposition politicians during an election campaign did not create a legitimate expectation and were not legally enforceable.
There has been inconsistency in the case law as to whether the applicant must show reliance resulting in detriment. Lord Kerr offers a convincing approach in Re Finucane (Northern Ireland) [2019], where he did not require proof of detrimental reliance.
This result supports the purpose of "legitimate expectation" review to protect those applicants who may not have the resources to act on the expectation, but their treatment still falls foul of good standards of administration and unfairly disregards their dignity and autonomy.
Did the statements made by the Malaysian EC and ministers create a 'legitimate expectation'?
Yes, the statements made by the EC and ministers created a legitimate expectation. The Respondents had the requisite authority to make those statements, with the EC having specific purview over changes in voting law.
Therefore, it is understandable to expect that the Respondents would provide the most accurate information regarding when Undi18 would come into effect.
The Respondents were also explicit and unreserved about the implementation of the Undi18 Act by July 2021. The excuses of Covid-19 and the technical restraints of AVR were only raised later.
The Applicants relied on these statements as articulating basic principles of voting rights and democracy. As a result, it is appropriate to adopt Lord Kerr’s approach to reliance and thereby recognise the inherent importance of Constitutional rights, the legitimate role of 18 to 20 year olds in participative democracy, and the unfairness of delaying their right to exercise these rights.
Consequently, it was reasonable for 18 to 20 year olds to expect that their right to vote would come into effect by July 2021, and this expectation amounts to a legally recognised “legitimate expectation.”
When can a ‘legitimate expectation’ be validly frustrated?
The law recognises the discretion of public bodies to make decisions weighing logistical and political interests. Thus, public bodies may deviate from a "legitimate expectation" where the impugned decision requires a balance of competing policy interests, and the decision-maker has also provided an adequate justification for its change in position.
The court will evaluate the specific circumstances of each case to decide on justification. The UK House of Lords explained in ex p Coughlan [2001] that the court will find a balance between different interests by looking at the assessment made by the public body itself.
Notably, the court requires the public authority to have placed great importance on the "legitimate expectation" in the decision-making process.
As a result, in R (Bibi) v Newham London Borough Council [2001], the UK Court of Appeal held that the established "legitimate expectation" had not been sufficiently considered in the decision making process, and required the local authority to reconsider the matter with due account of the legitimate expectation.
In ex p Coughlan, the House of Lords established that merely financial obstacles are insufficient to frustrate "legitimate expectation." Thus, the courts undertake a balancing exercise between the "legitimate expectation" and the other interest, with weighted importance on the "legitimate expectation", to decide if a public authority can frustrate the expectation.
Was it justified for the government to frustrate the 'legitimate expectation' created?
In the Undi18 case, the Respondents’ decision-making process was flawed and unconvincing. Their three justifications for the delay in implementing the Undi18 Act are as follows, and none are valid:
- Amendments had not yet been made to subsidiary legislation:
It is unnecessary to make amendments to subsidiary legislation. The Constitution is the supreme law and any inconsistencies with other legislation is impliedly repealed.
- The Covid-19 pandemic and movement control orders:
The Covid-19 pandemic and first movement control order (MCO) began in March 2020. The Respondents continued making representations until March 2021 that the Undi18 Act could be implemented by July 2021. When these later representations were made, the Respondents were aware and should have considered any impact that Covid-19 and MCO might have on the proposed timeline.
- AVR logistical issues:
The Respondents insist that Parliament intended for Undi18 to be implemented simultaneously with AVR. Therefore, the AVR’s logistical issues delayed and excused Undi18 from coming into effect.
This argument is unconvincing as accurate voter data is not an “overriding public interest” that justifies breaching the legitimate expectation for Undi18 implementation. The Respondents failed to recognise that the delay in implementing Undi18 contravenes the Constitutional right to vote, now granted to millions of 18 to 20 year olds, thereby undermining Malaysia’s democracy. Any logistical issues regarding the AVR are long-standing and have been present since the Undi18 Act was passed in 2019. Steps should have been taken earlier to address the problem, and the Respondents’ representations about implementation timing should have considered this issue.
The Respondents have no adequate justification for frustrating the legitimate expectation of millions of 18 to 20 year olds regarding the implementation of the Undi18 Act.
Although the Respondents claim to be protecting the legitimacy of Malaysia’s democracy, they have instead undermined democracy
Conclusion
Former PM Tan Sri Muhyiddin Yassin’s press conference on August 14, 2021 revealed that the Respondents were, in fact, not faced with obstacles in the implementation of Undi18.
In a final plea for support, after losing the majority Parliament, he offered to implement Undi18 without AVR by tabling another Bill in Parliament this September. Too little, too late.
However, his offer has undermined Respondents' excuse that Undi18 was delayed by the AVR. Instead, the former PM's statement shows that the government chose to conveniently rely on this obstacle.
By politicising something as fundamental to democracy as voting, the Respondents have defied the rule of law and suppressed young voters by failing to recognise their personhood.
The right to vote for 18 to 20 year olds should not be a political bargaining tool nor a logistical burden. Instead, it is now their Constitutional right -- it is time for Undi18 to be recognised and treated as such. It is a legitimate expectation.
* Juliana Ganendra and Muhammad Syed are reading law at Cambridge University and share an interest in public and human rights law. Juliana has interned at the Court of Appeal and Federal Court, where she witnessed landmark constitutional judgements, including, the “Bin Abdullah” case. Muhammad is currently an intern at Undi18 and the chief editor of the Cambridge University Human Rights Journal.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
