PUTRAJAYA, 16 Jan 2009: The Election Commission (EC) has never deprived Internal Security Act (ISA) detainees of the right to vote in the general election, the Court of Appeal ruled today.
Justice Zulkefli Ahmad Makinuddin said it was not the responsibility of the EC to ensure that detainees at the detention centres could vote on polling day.
This is because Article 119 of the Federal Constitution (FC) clearly provides that a registered voter can only vote for the particular constituency and at the particular polling station where his name has been registered as an elector.
He said the appellants were detained under the ISA at the Kamunting Detention Centre (KDC) and were not allowed to leave the centre, therefore it was beyond the EC’s power and jurisdiction to allow them to go to their respective constituencies to vote.
He said that although the EC had wide and unlimited discretion to make rules and regulations to enable the appellants to cast their votes, whatever law the EC might enact could not contravene the provisions of the ISA 1960.
“Further, the rules enacted must give effect to Article 119 of the FC (Federal Constitution), namely that the constitutional right of a voter can only be exercised in the respective constituency where he had registered as a voter.”
Zulkefli (now Federal Court judge), who sat with Justices Datuk Wira Low Hop Bing and Datuk Zainun Ali, made the ruling when deciding on the appeal by 22 ISA detainees against the High Court’s refusal for a judicial review of the EC’s rejection of their rights to vote in the 11th general election in 2004.
Zulkefli and Low dismissed the appeal with costs while Zainun dissented.
The 22 detainees are Yazid Sufaat, Nik Adli Nik Abdul Aziz, Ahmad Yani Ismail, Zainon Ismail, Abd Samad Shukri Mohamad, Abu Bakar Che Doi, Mat Sah Mohd Satray, Md Lotfi Ariffin, Idris Salim, Muhamad Zulkepli Md Isa, Mohd Sha Sarijan, Solehan Abdul Ghafar, Abdul Murad Sudin, Mohd Rafi Udin, Nordin Ahmad, Asfawani Abdullah @ Ab Wahab, Roshelmy Md Sharif, Alias Ngah, Suhaimi Mokhtar, Muhamad Zulkifli Mohamad Zakaria, Mat Salleh Said and Khairuddin Saad.
They wanted a declaration that their fundamental and basic human rights under Article 119 of the Federal Constitution to vote in the general election had been denied and violated by the EC.
All of them were detained for alleged involvement in the Jemaah Islamiah and Kumpulan Militan Malaysia (KMM).
Their counsel, Edmund Bond, said he would appeal the decision to the Federal Court. Senior federal counsel Azizah Nawawi acted for the EC.
Low, in his judgment, said all ISA detainees, by way of reasonable classification, were treated equally in so far as the exercise of their constitutional rights under Article 119 was concerned.
“Discrimination may well arise if other ISA detainees were accorded facilities to cast their votes and the appellants were denied or refused such facilities. However, that was not the case here,” he added.
Zainun, who allowed the appeal, said the EC, pursuant to the powers given by the Election Act 1958, could ensure that the fundamental rights of electors to vote were exercised and preserved to enhance the democratic process.
The EC, in not making any arrangements or creating any condition for the appellants to exercise that right, had breached that duty as there was no provision in the ISA which prevented, precluded or barred the appellants from voting.
“In the light of the above, I believe it is open to me to hold that the EC’s decision is either unreasonable or substantially unfair for having infringed the appellants’ rights under Article 8, 10 and 119 of FC,” she said. — Bernama