The Court of Appeal has fixed 9 am on 16 May 2012 for the hearing of the appeal of 6 overseas Malaysians whose challenge to the Election Commission (EC)’s refusal to register them as absent voters was dismissed by the High Court in Kuala Lumpur on 6 January 2012.
A Notice of Appeal was filed with a Certificate of Urgency on 25 January 2012 but the appeal could not be heard because the written grounds of the High Court judge were not produced until this month.
The 6 Appellants are challenging the High Court’s decision on the grounds that the High Court judge misunderstood the case that was brought by the Appellants and completely ignored the central question of whether or not Regulation 2 of the Elections (Registration of Electors) Regulations 2002, which allows only government servants, military personnel and students overseas to register as absent voters, was discriminatory and in violation of the Federal Constitution.
The High Court judge, Justice Dato’ Rohana Yusof, stated in her judgment that the 6 overseas Malaysians had made clear that they were not challenging the validity of the 2002 Regulations. However, the Appellants maintain that their cause papers and written submissions had always argued that the Regulation 2 of the 2002 Regulations was discriminatory and in violation of Articles 8, 10 and 119 of the Constitution.
The Appellants maintain that the High Court judge had confused their legal challenge to Regulation 2 of the 2002 Regulations with the remedy sought, which was to enlarge the categories of voters who were entitled to vote as absent voters under the 2002 Regulations, in order to bring it into conformity with the Federal Constitution.
The Appellants are also maintaining that the High Court judge was wrong to have held that the EC had no discretion or power to enlarge the categories of absent voters under the 2002 Regulations. They maintain that the High Court judge should have held that the EC had wrongly restricted the categories of Malaysians who can vote as absent voters and had done so in a discriminatory manner.
Lawyers from MyOverseasVote, the Malaysian Human Rights Commission (SUHAKAM), the Malaysian Bar and the Malaysian Centre for Constitutionalism and Human Rights (MCCHR) are expected to hold watching briefs at the Court of Appeal hearing in support of the 6 overseas Malaysians.