Undi18 court hearing: Lawyers for youth argue that Covid-19 not a good reason for delay

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The Covid-19 pandemic is not an acceptable reason for the Malaysian government and the Election Commission (EC) to have delayed a constitutional amendment to allow Malaysians the right to vote once they turn 18, the High Court heard today.

Lawyers for 18 Malaysian youths — all aged 18 to 20 — told the court that the government could not use Covid-19 to justify delaying the implementation of Undi18 from the initial expected date of July 2021 to the now-postponed timeline of September 2022.

Today was the High Court’s hearing of a lawsuit by 18 Malaysian youths against then prime minister Tan Sri Muhyiddin Yassin, the Malaysian government and the EC to challenge the delay in implementation of the constitutional amendment in 2019 that enabled Undi18.

The delay means the minimum voting age in Malaysia is still 21.

During the online hearing, lawyer Datuk Gurdial Singh Nijar who represents the youths presented a chronology of events that led to the lawsuit. He listed multiple assurances from ministers and the EC from 2019 until March 10 this year that Undi18 is expected to be implemented by July 2021.

He pointed out that it was only on March 25 that the EC said the implementation of the lower voting age of 18 and a new automatic voter registration system can only be done after September 1, 2022, as the movement control order (MCO) to curb Covid-19 had affected the EC’s plans and preparations.

Gurdial argued that Covid-19 could not be a credible reason as the EC’s work such as cleaning up details on voters’ data and even automatic voter registration could be done online, and that there would not be a need for large numbers of persons to gather together to register as voters.

“This automatic registration is done online, through use of technology, it’s done by the JPN (National Registration Department) and the EC, and they have been doing this when they clean up the electoral roll. In fact, this is facilitated in a better way, you don’t have to go anywhere to apply, this is automatic registration done between the EC and JPN itself.

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“So this question of Covid-19, it’s entirely unacceptable unless they show us why Covid-19 has created such a problem that they cannot, for example, switch on their computers and carry out cleaning of the electoral roll which they do continuously anyway through technology. So this kind of reason which is given is entirely unacceptable, and it’s supposed to be done by July 2021,” he said.

Gurdial pointed out that then law minister Datuk Seri Takiyuddin Hassan had in November 2020 told the Dewan Rakyat in writing that Undi18 is expected to be implemented in July 2021, noting that Covid-19 had already set in by then and this was two months after the third wave of Covid-19 cases started in September 2020.

Gurdial noted that Covid-19 was “in full bloom” when the EC deputy chairman had on March 10 this year said all systems are “on track” to implement both Undi18 and the automatic voter registration system.

Stressing that assurances were made repeatedly by the government from 2019 until early 2021 which he said was both during pre-Covid and post-Covid periods, Gurdial said that the government had failed to fulfil its obligation of implementing Undi18 at a “convenient speed” in line with Section 54(2) of the Interpretation Act.

Another lawyer for the youths, Datuk Ambiga Sreenevasan pointed out that the Dewan Rakyat Hansard had recorded the government as saying in 2019 that preliminary work had started since July 2018 for studies on automatic voter registration and the need to develop the related workflow and systems.

“All that has already started, so in fact even when Covid-19 hits, they should have been ready, quite frankly,” she told the court.

Ambiga also highlighted that a former chairman EC had on June 7 last year said preparations for Undi18 and automatic voter registration is expected to be done by July 2021, noting that the Covid-19 pandemic had already set in by then and that it was after the first MCO.

Ambiga said there were later six more assurances made by the government — after the June 2020 assurance — that Undi18 could be done by July 2021, and that the government should not be allowed to get away with the alleged thwarting of the will of Parliament.

“It’s an embarrassment to say the least, that the EC is dragging its feet and they are using Covid-19 as a reason,” she said.

Among other things, she said the cleaning up of the electoral roll is a continuous duty of the EC that has been carried out for years, and that this cannot be an “excuse” for the delay of Undi18.

Ambiga also said it was a “red herring” for the government to insist that the lower voting age of 18 and automatic voter registration has to be implemented together, arguing that the 2019 constitutional amendment’s phrasing was wide enough to enable Malaysians aged 18 to manually register to vote — as is currently done — if the automatic voter registration system is not ready.

Ambiga said that the 2019 constitutional amendment did not contain any phrases stating “automatic voter registration”, but instead only opened up the pathway for automatic voter registration to be introduced in Malaysia and could easily accommodate both automatic and manual registration methods.

Ambiga said it was “irrational” that the constitutional amendment that reduced the minimum age for election candidates from 21 to 18 has already taken into effect, while Undi18 has yet to be enforced.

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“We look ridiculous. If there’s an election today, an 18-year-old can run as a candidate, but he can’t even vote for himself. We will be the laughing stock of the world,” she said.

In response, senior federal counsel Shamsul Bolhassan from the Attorney-General’s Chambers argued that Parliament clearly intended for both the lower voting age of 18 and automatic voter registration to be implemented together, further saying that the 2019 constitutional amendments for these two items could not be implemented separately due to Section 43 of the Interpretation Act.

Shamsul also said the government never said it did not want to implement the constitutional amendments but things had came to a “halt” due to the “difficulties” faced as a result of the MCO and Covid-19 pandemic.

“They never said we won’t register, they said we will register, they said give us time, because the system is not ready,” he said, arguing it would not be right to compel the EC to register when the system is not ready.

Senior federal counsels Raja Shahril Anuar Raja Baniamin, Shamsul Bolhassan and Azizan Md Arshad represented the then prime minister, the Malaysian government and the Election Commission today.

Senior federal counsel Raja Shahril Anuar Raja Baniamin argued that not all of the EC’s work could be done remotely or online.

“We are not saying Covid-19 is the main reason for the subject matter, being the delay of Undi18, but it does have an effect towards implementation of Undi18 and automatic voter registration.

“For instance, physical interaction is needed because not all the tasks to be carried out by the EC can be carried out online or by way of technology, there are things that need to be done by way of physical interaction. For example, by going to the ground to carry out certain investigations with regards to ensuring the voter is actually there.

“And another thing is that the system that is currently being set up by the EC, there are things that need to be checked or to be done physically, and it cannot be done by way of online,” he said, adding that the MCO hampered the EC in carrying out required works to enable the automatic voter registration and Undi18 to be done according to the earlier planned schedule.

The High Court judge then questioned why the government continued to give assurances even during the Covid-19 pandemic that Undi18 can be done by July 2021, and why the government was now citing Covid-19 as slowing down physical work required.

Raja Shahril Anuar agreed that Undi18 was expected to be done by July 2021 but again cited the MCO as affecting the EC in setting up the required system, and also said that a plan during the Emergency period — which was from mid-January 2021 to August 1, 2021 — did not materialise.

“And the government itself, there’s a plan during the Emergency, like a backup plan to implement the Undi18, but somehow or rather it doesn’t work,” he said, without elaborating on this backup plan.

“Another thing, in fact, the system is there, but it’s like the data that needs to be filled in into the system is not ready yet, therefore cannot be implemented 100 percent by July 2021. Time is needed to ensure that it is completed before it can be carried out 100 percent,” he said, adding that the EC given timeline of September 2022 is the “maximum” and that it would try to ensure that all is ready before the deadline.

The judge then asked if Undi18 will be implemented by September 2022 if the Covid-19 pandemic continues, with Raja Shahril Anuar then saying: “We are trying our best, we are still doing it, in fact currently we are still implementing certain processes to ensure the deadline is being met, but we agree it’s a bit difficult but we try, because we already gone through Covid-19 since March 2020.”

The judge also questioned why the government had yet to amend the related election regulations for the past two years to match the amended Federal Constitution which now enables Undi18, with senior federal counsel Azizan Md Arshad then said this is because the government has to look at other laws instead of laws related to the EC as well.

Azizan said it was not a simple matter of just extracting data on voters from the NRD for voter registration as there was a need to examine if it would be against data protection laws, and as there would also be a need to look into issues of disqualification of voters such as those detained in prison or mental hospitals.

“The statement that had been issued by the EC before, by the minister in the legal department, if we look at it as a whole, the word is “jangkaan” (expected), it’s not something that is certain,” he said of the expected July 2021 timeline previously mentioned by the government.

“Even though Covid-19, the world is still ongoing, but the pace is quite slow, it’s not they are sleeping on the file or sleeping on the amendment, no they are working, but the pace is quite slow, a bit slow.

“And of course EC cannot reveal every move they make to the public, because some of the information cannot be revealed for the time being,” he said, adding that the government has to relook at the constitutional amendment as it was passed in 2019 in Parliament through bipartisan support and that the government now has to go back and engage with all stakeholders.

The other lawyers who represented the 18 Malaysian youths today are New Sin Yew, Lim Wei Jiet, Abraham Au and Joshua Wu Kai-Ming.

Undi18 co-founders Qyira Yusri and Tharma Pillai also attended the Zoom court hearing.

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Five of the youths who filed the lawsuit attended the High Court’s online proceedings today, namely Elrynna Ixora Mohamed Rizal, Jonathan Lee Rong Sheng, Nurul Rifayah Muhammad Iqbal, Umar Farouq Rohaizad and Zara Laticea Taza.

The rest of the 18 youths who filed the lawsuit are Azif Fazriq Azizi, Chiang Kah Vern, Dawson Chong Soon Fook, Elisa Shafiqah Shahrilnizam, Izanna Azuddin, Kyra Iman Kabir Subhash Bhatia, Lim Joshua, Lim Yue Kin, Muhammad Rifqi Faisal Alvin, Nik Aqil Farhan Nik Mohd Erman, Sharifah Khadijah Syed Razif, Sor Wai Kit, and Tan Wei Wei.

The 18 youths had filed this lawsuit through a judicial review application in the High Court in Kuala Lumpur on April 2, 2021, and had obtained leave on June 17, 2021, which led to today’s hearing.

They are seeking five court orders, including an order for the Malaysian government to bring into force the 2019 constitutional amendment no later than two months from the High Court’s decision or any other time that the High Court considers “fair, just and reasonable”, to enable Malaysians aged 18 to 20 to vote in elections instead of having to wait until they turn 21.

High Court judge Datuk Ahmad Kamal Md Shahid is expected to deliver his decision in this case on October 21.

Separately, five Malaysian youths aged 18 to 20 had on May 4, 2021, filed a similar lawsuit in the High Court in Kuching, Sarawak, with the court expected to deliver its decision on August 30. – MMO