PUTRAJAYA: The Court of Appeal today 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 Datuk Supang Lian, Datuk Wong Kian Kheong, and Datuk Ismail Brahim held that the EC had violated R.K. Tamileswaaran’s constitutional right to vote under Article 119 of the Federal Constitution by preventing him from exercising his right to vote.
“The first respondent (EC) had committed an ‘error of law’ or an illegality in this case by denying the appellant’s (Tamileswaaran’s) right to vote in the election,” he said.
In delivering the court’s unanimous decision, Justice Wong said 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 said.
Justice Wong issued a certiorari order to quash the EC’s decision, and granted several declarations sought by Tamileswaaran.
The court allowed Tamileswaaaran’s appeal to overturn the Dec 7, 2022, decision by the High Court in dismissing his judicial review. The court did not make any orders as to costs.
While acknowledging that courts have the discretion to award monetary compensation for breach of the right to vote, Justice Wong said no constitutional compensation would be granted in this case.
He said this was because the EC’s decision was made based on the SOP in the interest of public health and safety, and its officers had acted in good faith in this case.
In the judgment, Justice Wong held that the SOP and the PCDA regulations created by the Director-General of Health and the Minister of Health, respectively, are subsidiary legislation and not Federal law or an Act of Parliament.
The court also 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,” added Justice Wong.
In his judicial review application, R.K. Tamileswaaran claimed that 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