The pivotal case of ‘PR vs. EC’ 

If the EC had failed to properly uphold the laws regulating their role and function, then any decision made by the EC was ultra vires. Judges would be entitled to reach this conclusion, should the facts and the law bare this out.

Ratna Rueban Balasubramaniam, MM 

Not every legal suit is the same. Some cases are pivotal because throw into sharp relief the fundamental principles and values that inform claims of legal and political legitimacy within a legal-political order. Such cases are an opportunity to articulate and clarify the principles that govern legitimate political rule.

PR’s suit against the EC is precisely such a case. PR claims that the EC did not uphold its constitutional mandate to be impartial and independent and free of the influence of political parties.

And it claims that various irregularities with the voting procedures, especially the failure to use indelible ink, have compromised the electoral result. PR is asking the courts to issue among other things, a declaration requiring the dismissal of the EC and its immediate reconstitution. And it is seeking an order requiring that there be fresh elections.

The case is a pivotal case because it is an occasion for the courts to clarify that the Malaysian Constitution lays down a legal basis to a “constitutional democracy.”

In a constitutional democracy, there are legal norms put in place to ensure that each citizen has an equal right to political participation, that is, the right to participate in any political decision affecting their fundamental interests.

In a constitutional democracy, the ideals of the rule of law or legality and the ideal of democracy are mutually constitutive ideals: the former aspires to tame arbitrary power while the latter aspires to make such power systematically responsive to the interests of citizens.

Both ideals emphasize the citizen’s perspective as the primary perspective to assess all questions of political legitimacy. In Malaysia, these ideals are yoked together within the fabric of our Constitution.

Elections give special expression to the citizen’s right to political participation by enabling citizens to select which political paradigm should control political decision-making affecting their interests. However, elections are not merely about outcomes or results.

Electoral procedures also require that there is a political environment within which there is fair competition between competing paradigms so that citizens can properly assess and select which among these paradigms will serve the common good. And it requires that there is an adequate electoral procedure by which citizens can exercise meaningful political choice.

Political science establishes that Malaysian politics is “semi-democratic,” which implies that the political environment does not allow for a fair competition between political paradigms; political science also shows how the electoral procedure is skewed. This isn’t new news.

But what is significant is that despite limits to free political competition and deficits afflicting the electoral process, there has been sufficient competition over the last few years in the elections so that they carry real stakes. Hence, GE 12 revealed that the ruling UMNO/BN could suffer significant losses at the polls, giving rise to a “political tsunami.”

It is precisely the fact that there are real stakes that has made GE 13 so important. Prior to the recent elections, there was a palpable sense that there could be political change and a complete shift in political power away from UMNO/BN. But due to the various pathologies afflicting the electoral process this time round, this did not come to pass. So people feel cheated.

But it is important to be precise about why they feel cheated. At one level, this feeling expresses frustration about the accuracy about the electoral result. At another level, the feeling expresses frustrations about the lack of integrity of the voting procedure such that citizens could not meaningfully select a representative government, quite apart from the result.

These frustrations underpin the legal arguments now at issue in the lawsuit filed by PR. The lawsuit challenges the electoral result and implies that voters could not exercise meaningful democratic choice. Of course, both concerns are related.

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