Hearing of Challenges to the Election Commission Should be Fair to All Parties

The Malaysian Bar is concerned about recent news reports stating that the Chief Justice of Malaysia has ordered that the hearing of two legal challenges against the Election Commission (“EC”) in relation to the ongoing electoral redelineation exercise be expedited to 20 June 2017.
In the first of these two cases, involving the State of Selangor and the EC, case management had been set for 6 July 2017.  This relates to appeals by both parties with respect to the decision of the High Court.  The Registrar of the Court of Appeal on 6 June 2017 wrote to inform the parties that case management had been brought forward to 9 June 2017.  At that case management, parties were informed that the Chief Justice had directed that the hearing of the matter must be fixed on 19, 20 or 21 June 2017, although a hearing date of 19 July 2017 had previously been set by the court.  Despite the lack of agreement on the date, the court then proceeded to fix 20 June 2017 for the hearing.  The court ordered that written submissions and legal authorities be filed within four working days, i.e. on or before 15 June 2017.
In the second case, involving seven individuals from the state of Melaka and the EC, pursuant to a court letter dated 5 June 2017, a case management was also held on 9 June 2017 on the appeal by the EC against the High Court’s decision to grant the applicants leave to seek judicial review, and to stay the redelineation work of the EC.  Again, hearing of the appeal before the Court of Appeal was fixed on 20 June 2017.  In this case, the appeal record by the Attorney General’s Chambers on behalf of the EC has not even been filed.  This is contrary to the practice where hearing dates are not fixed before the appeal record has been filed.
We agree with the principle that court hearings for matters of public interest — such as these challenges against the EC in relation to the ongoing electoral redelineation exercise — should be given priority, because the implications of these legal challenges are far-reaching.  However, prioritising such cases should not come at the expense of all parties concerned having the opportunity to undertake proper and thorough preparation for the hearings.
This hastily arranged change or fixing of hearing dates, without the agreement of the parties, runs counter to the Chief Judge of Malaya’s Practice Direction 2 of 2011, which was issued after consultation with the Chief Justice of Malaysia.  This states that:
2.3.1   Mahkamah dalam menjalankan kuasa budibicaranya untuk menetapkan kes akan mengambil kira kelapangan peguam dan perlu diseimbangkan dengan keperluan untuk menyelesaikan kes secara pantas terutamanya kes-kes lama.
2.3.2   Tarikh bicara yang telah ditetapkan oleh Mahkamah tidak boleh dibawa ke hadapan kecuali dengan persetujuan pihak-pihak.
It is clear that this Practice Direction 2 of 2011 is not being adhered to.
It is noteworthy that while the Selangor and Melaka cases have been expedited, no attention appears to have been paid to the Perak case, where leave to challenge the EC’s delineation proposals was rejected, and an appeal against that decision has been filed.  If the administration of justice is to be seen as even-handed, the courts must be concerned not only in cases where the decision has gone against the EC, but equally in cases where the EC has won and there is an appeal.
The Malaysian Bar calls on the Judiciary to ensure that all cases dealing with challenges to the EC be conducted with the utmost of transparency and integrity.  In addition, due and proper regard must be paid to the need for counsel for all parties to have adequate time to prepare and present their written and oral submissions in a manner that is befitting the dignity of the courts and the interest of justice.
George Varughese
President
Malaysian Bar
 
14 June 2017

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