Ivan Alexander Ong & Ors v The Prime Minister of Malaysia & Ors [2021] MLJU 1655

THE “UNDI18” law that was lying in cold freeze since 10 September 2019 will come to life by 31 December this year. The Kuching High Court has so ordered and Judicial Commissioner Alexander Siew How Wai should be congratulated for his bold and far-reaching decision in the case of Ivan Alexander Ong v The Prime Minister [2021] MLJU 1655.

Facts: In this case the Plaintiffs were several 18-20 year-old Sarawakians who were waiting to be enfranchised. They sought the court’s intervention to enforce the much-celebrated Constitution (Amendment) Act 2019 which had lowered the voting age from 21 years to 18; provided for AVR – automatic registration of voters; and reduced the qualifying age to 18 for candidates contesting a seat in the Dewan Rakyat and the State Assemblies.

The Amendment Act was signed by the Yang di-Pertuan Agong on 4 September and gazetted on 10 September 2019. However, it carried a special provision that Section 3(a) dealing with voting age and Section 3(b) dealing with automatic registration are to come into operation only on a date to be appointed by the Yang di-Pertuan Agong by a separate notification in the Gazette.

This special notification by the Yang di-Pertuan Agong (who, under Article 40(1), acts on the Prime Minister’s advice) has not been made till today. Section 3, which is the most critical part of the amendment is, therefore, in limbo.

Before the learned judge it was noted that after the passage of the historic law, the Election Commission (EC) had on 3 September 2019, issued a statement that it will take 18-24 months before Section 3 can be implemented. As late as 10 March 2021 the EC affirmed that July 2021 was the date for all the procedures to be completed. The Minister concerned also had on 10 Oct 2019 declared to Parliament that all the formalities to implement Section 3 will be accomplished by July 2021.

Despite these undertakings, a media statement by the EC on 25 March 2021 announced that the date of implementation would be delayed to September 2022. However, the Minister concerned continued to give an assurance on 2 May 2021 that Undi18 will be implemented this year.

Plaintiff’s submissions: In the light of the above undertakings, the Plaintiffs contended that as the government had promised to implement Section 3 by July 2021 at the latest, it is obliged to honour this deadline. Reduction of the voting age was the Plaintiff’s legitimate expectation. The EC’s insistence on linking the voting age with AVR was irrational, unreasonable, disproportionate and wrong in law.

Alternatively, if the AVR roll is not ready, the respondents should separate the voting age from automatic voter registration and enforce the lowered voting age forthwith or by the promised date.

Respondents’ rebuttals: In reply, the government contended that the EC faces the tremendous challenge of resolving inconsistencies between the voters’ place of residence and the addresses in the National Registration Department records. Getting the new voter rolls ready, providing for objection time, and gazetting the new rolls need more time. Nearly 5.6 million potential voters are involved - 1.2 million between 18 and 20 years, and 4.4 million above 21 but who did not bother to register.

The Respondent also took the position that under Section 43(b) of the Interpretation Acts the provision to lower the voting age and the implementation of the AVR cannot be decoupled. Section 43(b) provides that a power to appoint a date on which a law shall come into operation does not include the power to appoint different dates for different provisions.

The AG’s Chambers also pointed out that consequential changes have to be made and have not been made to many laws to implement the constitutional amendment of 2019. Among the laws needing amendments are the Election Offences Act 1954, the Elections (Conduct of Elections) Regulations 1981 and the Elections (Registration of Electors) Regulations 2002.

One may add that all State Constitutions need also to be amended to lower the eligibility age to 18 for contesting a State Assembly seat. Only six States – Perlis, Perak, Kelantan, Terengganu, Sabah and Sarawak - have amended their State Constitutions to reduce the candidacy age. Others need to follow suit.

The verdict: The judge agreed with the government that the intention of parliament was to reduce the voting age and provide for AVR simultaneously. Also, the sections on voting age and AVR cannot be de-coupled because of Section 43 of the Interpretation Acts.

However, the judge was not satisfied with the government’s rationale for extending the implementation date. He noted that the Amendment Act had been passed by an overwhelming, unanimous vote in the Dewan Rakyat and the Dewan Negara in July 2019. The Respondents had full two years to do all that was necessary to put the law into effect. Till 10 March 2021 there were repeated affirmations that July 2021 would be the implementation date but two weeks later the implementation date was moved to September 2022. This was irrational, illegal and prompted by extraneous considerations.

The learned judge was of the view that Section 1(2) of the Amendment Act imposes a duty on the Cabinet to advise the King to appoint a date on which the law is to come into full operation. Though no time limit is prescribed in the Amendment Act, Sections 54(2) and 108 of the Interpretation Acts provide that “when no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed”. “Convenient speed” means “as soon as possible” or “within a reasonable time”.

As to Covid-19 and the movement control orders, the Election Commission did not explain how these had affected its plans and preparation.

As to the failure to make the consequential amendments to existing laws, the judge correctly pointed out that two of the Regulations were subsidiary legislation which do not require parliamentary passage and could have been amended by the EC at any time within the last two years. As to Section 31(1) of the Election Offences Act 1954 which bars an election agent from being less than 21 years, the judge noted that under Section 12(2) a candidate may name himself as an election agent and the age of 21 will, therefore, not apply.

Does the Court have the power to grant an order to compel the Cabinet to advise the King? The learned judge relied on the celebrated cases of Teh Cheng Poh (1979), Petrojasa Sdn Bhd (2008) and the Courts of Judicature Act to hold that the Courts have the power to issue to any person or authority the order of certiorari to quash the EC’s decision to defer implementation.

The Court also has the power to issue the order of mandamus to the Cabinet to take all necessary steps to bring the constitutional amendment into operation as soon as possible and in any event by 31 December 2021.

Conclusion: This learned and courageous judgment affirms the power of the courts to review the constitutionality and legality of executive actions. It gives effect to the intention of the 2019 constitutional amendment to trust our 18-year olds with the power to choose their government.

It disapproves of undue delays in the performance of public duties. It puts a stop to the dilly dallying by the executive and its undemocratic effort to frustrate or delay the will of parliament.

It is heartening to note that the AGC has not filed an appeal against this scintillating decision. All Malaysians, especially those between 18 and 21, can hope to herald a new electoral era before the sun sets on this tumultuous year 2021.

[MONTHLY CASE COMMENTARY] The monthly case commentary is extracted from the Consti Bulletin, which is a collaboration between the Faculty of Law, University of Malaya and the Malaysian Bar Council.

In this commentary, the esteemed constitutional expert, Emeritus Prof Datuk Dr Shad Saleem Faruqi will dissect the case of Ivan Alexander Ong & Ors v The Prime Minister of Malaysia & Ors [2021] MLJU 1655