Section 9A of the Elections Act 1958 stipulates that:
“After an electoral roll has been certified or (and) re-certified, as the case may be, and notice of the certification or (and) re-certification has been published in the Gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by, any court.”
This in substance means that once an electoral roll is gazetted, it cannot be challenged in court. The Election Commission has absolute power in controlling the electoral roll and cannot be challenged, even in the presence of elements of fraud legally proven or admission of irregularity by the Election Commission itself.
Section 9A is an ouster clause, i.e. it prevents members of the public the right to have decisions reviewed by the courts. Citizens must be allowed to assert their right and challenge the electoral roll if it is suspected to have discrepancies.
Section 9A was controversially introduced by the Barisan Nasional-led government after the landmark Likas by-election case. In 2001, the Kota Kinabalu High Court had found the Likas constituency electoral roll to be flawed, as it contains phantom voters, and hence declared the 1999 constituency polls to be null and void, or tainted with fraud.
We call on the government to repeal Section 9A as it is unconstitutional. It is hindrance towards a free and fair election, undemocratic, and prevents the judiciary from discharging its independent role under the doctrine of the Separation of Powers as arbiters of rights and duties.
Government of Malaysia