High Court orders EC to implement Undi18 by Dec 2021, says govt’s delay to Sept 2022 irrational, illegal

KUALA LUMPUR, Sept 3 ― Five Malaysian youths who took the government and the Election Commission (EC) to court for delaying lowering the voting age to 18, won today.

The High Court in Kuching, Sarawak ruled that the government and Election Commission (EC) must take steps to implement Undi18 by the end of this year, to enable Malaysians aged 18 to vote in the next elections instead of waiting until they turn 21.

High Court judicial commissioner Alexander Siew How Wai ruled that the EC and government had acted “illegally” and “irrationally” when they decided to delay the Undi18 implementation from the promised date of July 2021 to September 2022.

Following his decision that the EC and government had failed to act with “all convenient speed” to implement the lower minimum voting age of 18, Siew granted two court orders.

The first court order is to quash the EC and government’s decision to delay the implementation of Undi18 until after September 2022.

The second court order is a mandamus order that compels the EC and government to “take all necessary steps” for the constitutional amendment which includes Undi18 to “come into operation as soon as possible and in any event by December 31, 2021”.

Today was the delivery of the High Court’s decision for five Malaysian youths’ lawsuit or judicial review application to seek the immediate enforcement of a 2019 Constitutional amendment, which had lowered the minimum voting age in Malaysia from the initial 21 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 (Tan Sri Muhyiddin Yassin’s legal name) in his then capacity as prime minister, the government of Malaysia, and the Election Commission.

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 right to vote is 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 the hearings on July 27 and August 13 of the judicial review application on its merits, and to the decision today.

Reasons for the High Court’s decision today

In reading out excerpts from his full judgment during court proceedings via the Zoom video-conferencing platform, Siew ruled that the five Malaysian youths have the legal standing to file the lawsuit on Undi18, and noted that the government did not dispute this.

“This court finds the applicants as Malaysians aged 18 to 20 would be adversely affected by the delayed implementation of Section 3, and have a real and genuine interest in the subject matter,” he said.

The judge carefully listed out the history relating to Section 3 of the Constitution (Amendment) Act 2019, which is a law that was passed in July 2019 by both the two houses of Parliament ― Dewan Rakyat and Dewan Negara ― to amend the Federal Constitution to both lower the minimum voting age to 18 and to pave the way for automatic voter registration.

The Constitution (Amendment) Act 2019’s Section 3(a) amends the Federal Constitution’s Article 119(1)(a) to lower the voting age from 21 to 18, while Section 3(b) amends the Federal Constitution’s Article 119(4)(b) to allow for automatic voter registration to replace the current system where Malaysians have to apply to be registered as voters.

However, both Constitutional amendments — Section 3(a) and 3(b) — have not come into force in Malaysia yet, as they will only come into operation on a date to be appointed by the Yang di-Pertuan Agong via a notification to the public through a government gazette.

(Section 1(2) of the Constitution (Amendment) Act 2019 states “Section 3 of this Act comes into operation on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette.”)

Among other things, the judge today said that although it is the Agong who appoints the date on when Section 3 would come into operation, the Agong would be acting in accordance with the advice of the Cabinet or of a minister acting under the Cabinet’s general authority, in line with Article 40 of the Federal Constitution.

The judge cited the Federal Court’s 2008 decision in the case of Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd which had said that the court does have the power to grant a mandamus order against a minister.

The judge said this today while examining the question of whether the court would have the power to grant a mandamus order to compel the Cabinet or a minister to advise the Agong on the date of operation for Section 3 ― which includes Undi18.

The judge today also said that he was of the view that Section 1(2) “imposes a duty” on the Cabinet to advise the Agong to appoint a date on which Section 3 is to come into operation, adding that this statutory duty means that the Cabinet cannot decide not to advise the Agong on this.

Noting that Section 1(2) was “silent” or did not mention when the Cabinet has to advise the Agong on the date for Section 3 to come into effect, the judge then referred to Section 54(2) of the Interpretation Act.

Section 54(2) states that: “Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”

In applying Section 54(2) to the Undi18 lawsuit, the judge said: “The Cabinet has to advise the Yang di-Pertuan Agong to appoint a date for Section 3 to come into operation with all convenient speed. If the Cabinet takes the position that certain tasks have to be completed first before the Cabinet advises the Yang di-Pertuan Agong, it would follow that the tasks would have to be undertaken at all convenient speed as well.”

Six reasons on ‘convenient speed’

The judge agreed with the EC and government that Section 3(a) (on Undi18) and Section 3(b) (on automatic voter registration) could not be implemented separately due to Section 43(b) of the Interpretation Act.

(This was because Section 1(2) did not mention that different dates of operation can be given for Section 3(a) and Section 3(b).)

The judge also agreed with the EC and government that Parliament’s intent was clearly to have both Section 3(a) and Section 3(b) come into operation on the same date instead of different dates, as both provisions did not come under separate sections but were placed together under Section 3.

The judge then went on to say that the government had failed to act with all convenient speed to advise the Agong on the date for the entire Section 3 to come into effect or to complete the tasks that the government had said needs to be done before the advice on the date could be given to the Agong.

The judge today listed three principles on the key point on whether the government had fulfilled the requirement to act with “all convenient speed”, namely “as soon as possible within reasonable time”, depending on the facts and circumstances, and that the onus is on the public authority to justify or provide reasons when there has been a delay.

In listing out the six reasons why the High Court today found the government to have failed to act with all convenient speed, including the fact that the promised implementation date of “by July 2021” for Undi18 was set by the EC and government themselves.

The judge referred to various events that had taken place since 2019 until early March 2021, when ministers and EC had “repeatedly reaffirmed” that the constitutional amendment to lower the voting age to 18 years old would be implemented by July 2021.

The judge pointed out that the EC had in September 2019 ― or about five weeks after Parliament had passed the constitutional amendment for Undi18 ― estimated that it would take 18 to 24 months for Undi18 to be implemented, and that the July 2021 timeline was repeatedly mentioned in 2020 and up to March 10, 2021. (It was only on March 25, 2021 that the EC said that Undi18 and automatic voter registration is expected to be able to be implemented “after September 1, 2022”.)

As for the second reason, the judge said the incomplete or inconsistent voters’ addresses that the EC was now citing as having led to the delay of Undi18 was something that was already “known from the outset”, as can be seen through the Dewan Rakyat Hansard and past statements from the government.

“The respondents knew these issues when setting the date of implementation of ‘July 2021 at the latest’,” the judge said.

The judge pointed out that the government’s own July 2021 timeline would mean that the EC and government “have had a full two years” from 2019 to address the issues that they were now citing for the delay.

He said the government and the EC must have known the progress of work done to address these issues when they had repeatedly mentioned the July 2021 timeline.

As for the third reason, the judge said the EC “has not explained how the movement control order (MCO) could have affected its plans and preparations” for Undi18’s implementation.

Noting that the MCO had started since March 2020 and was ongoing in various forms until March 2021, the judge pointed out that both the EC and ministers had continued to make statements reaffirming that the implementation of Section 3 (including Undi18) was proceeding as planned and would be implemented by July 2021.

The judge also said by-elections had been deferred during this period and the EC did not have to handle such by-elections as it would normally have to, and concluded that the EC had failed to explain how MCO affected the implementation of Section 3.

As for the fourth reason, the judge said the election-related regulations ― which the EC said have to be amended before the Undi18 could be implemented ― are “mere regulations” that “can be amended by the EC at any time”.

As for the Election Offences Act provisions that the government argued must be amended first, the judge said these were minor amendments that are not strictly necessary for Section 3 to be implemented, and could even be amended at a later stage after Section 3 is implemented and before the next elections.

“It begs the question why these amendments have yet to be made, given the [Constitution (Amendment) Act 2019] was passed in 2019, more than two years ago, and when the respondents had planned to have these amendments passed,” the judge said.

As for the fifth reason of the government’s failure to act at a convenient speed, the judge highlighted the delayed implementation of Undi18 to after September 2022 means a “delay of 14 months” from the original July 2021 timeline.

While taking note that the government had argued the July 2021 date was an “estimation”, the judge said this was however not a case where the government and EC were saying they need an extension of one or two months or a few months from July 2021.

The judge said that it “simply makes no sense” for the government and EC to say even up to March 10, 2021 that it would be done by July 2021, but to turn around two weeks later on March 25, 2021 to say it could be done by September 2022 at the earliest.

“The court further finds any decision to defer implementation to after September 2022 to not only be manifestly irrational, but illegal in that it goes against the duty in Section 1(2) to act with all convenient speed,” the judge said.

As for the sixth and final reason, the judge said that the government’s case was further undermined by two statements in April 2021 and May 2021 where then law minister Datuk Seri Takiyuddin Hassan reverted to the earlier timeline of July 2021 for Undi18’s implementation.

The judge said that such statements by May 2021 would erase any doubt that the EC’s announcement on March 25, 2021 to defer the implementation of Section 3 was not due to the EC’s reasons, but was motivated by some extraneous consideration.

Having listed the six reasons, the judge then gave a certiorari order to quashed the government’s and EC’s decision to defer Section 3’s implementation to after September 2022, and also gave the mandamus order requiring all necessary steps to be taken for Section 3 to come into operation as soon as possible and by December 31, 2021.

The judge did not give any order as to costs.

The Zoom session today was attended by four of the youths who filed the lawsuit (Ong, Sharifah Maheerah, Wee and Chang), Undi18 co-founder Qyira Yusri, Undi18’s campaign for Sarawakian youths Undi Sarawak’s Soon Wei Xen and Nadia Malyanah.

The five youths who filed the lawsuit were represented by lawyers Simon Siah and Clarice Chan, while those who were sued were represented by the Attorney-General’s Chambers’ senior federal counsels Shamsul Bolhassan and Azizan Md Arshad and by federal counsel Jessica Lee.

What’s next?

When asked if the EC and government would appeal today’s decision, Shamsul told Malay Mail: “We need to see the full grounds and get further instruction.”

In an immediate response to the High Court’s decision, Undi Sarawak said the decision is monumental and significant as all Malaysian youths aged 18 to 20 would be able to exercise their constitutional right to vote.

Ong, a youth in the lawsuit who is aged 19, said the court’s decision today means that about 125,000 to 135,000 Sarawakian youths aged 18 to 20 “will be able to vote in the upcoming” Sarawak state elections when the Emergency in Sarawak ends.

Malaysia was previously put under a nationwide Emergency from January 11 to August 1 where elections were suspended.

On July 30, the Malaysian government gazetted the Yang di-Pertuan Agong’s proclamation of Emergency which imposed an Emergency in Sarawak only from August 2, 2021 to February 2, 2022.

An Emergency ordinance which came into effect on August 2 effectively suspended the dissolution of the Sarawak state assembly which would have otherwise resulted in the Sarawak state elections, and stated that the Sarawak state election would be held within 60 days after the Emergency ordinance for Sarawak is revoked.

On March 25, 2021, the EC had said that its records showed that there are currently 1.2 million Malaysians aged 18 to 20.

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. The High Court in Kuala Lumpur is scheduled to deliver its decision on the youths’ judicial review on October 21.

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