The right to vote is a constitutional right, not merely a statutory right, and subsidiary legislation cannot infringe upon it, according to the Federal Constitution.

A. Introduction

[1] This appeal (This Appeal) discusses the following two novel questions:

(1) whether the Election Commission, the 1st respondent in This Appeal (1st Respondent), could lawfully deny the right of the appellant (Appellant) under art 119(1) of the Federal Constitution ( FC ) to vote on 12 March 2022 in the Johore State Elections (Elections) in respect of Skudai constituency on the ground that the Appellant had contracted COVID-19 disease and was consequently barred from voting in the Elections by a Standard Operating Procedure (SOP) issued pursuant to reg 17(1) of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) (Transition Phase to Endemic) Regulations 2022 (PCID Regulations); and

(2) if the Appellant's right to vote in the Elections had been unlawfully deprived by the 1st Respondent, in addition to the remedies of a certiorari order and declarations granted by the court, whether the Appellant is entitled to monetary compensation or damages from the respondents in This Appeal (Respondents) when the FC is silent on monetary relief in a case of an unlawful denial of a Malaysian citizen's right to vote. In this regard, is the right to vote:-

(a) a constitutional right pursuant to art 119(1) FC ; or

(b) a statutory right under the Elections Act 1958 ( EA ) and subsidiary legislation made under the ?

B. Background

[2] The Appellant is a Malaysian citizen who has fulfilled all the requirements of art 119(1)(a) to (c) to vote in the Elections.

[3] On 7 March 2022, the Appellant tested positive for COVID-19 disease. Under the SOP for Phase 4 of the National Recovery Plan, the Appellant was required to undergo home quarantine.

[4] On 12 March 2022:-

(1) when the Appellant was in his sixth day of home quarantine, he self-tested for COVID-19 disease and the result of this self-test was negative (Self-Test Result);

(2) the Appellant was supposed to cast his vote at the polling centre at Sekolah Kebangsaan Taman Tun Aminah 2, Skudai (Polling Centre);

(3) when the Appellant's parents voted at the Polling Centre, they orally enquired from an officer of the 1st Respondent on whether the Appellant could vote (in view of the Self-Test Result). The 1st Respondent's officer verbally informed the Appellant's parents that the Appellant could physically come to the Polling Centre and check on the Appellant's "MySejahtera" status [Conversation (Appellant's Parents-lst Respondent's Officer)]; and

(4) based on the Conversation (Appellant's Parents-lst Respondent's Officer), the Appellant went to the Polling Centre. However, the 1st Respondent's officers did not allow the Appellant to enter the Polling Centre on the grounds that his MySejahtera record displayed a "high risk" status and he did not obtain a permission to vote from the District Health Officer (1st Respondent's Decision/ Action).

The 1st Respondent's Decision/Action was based on the SOP which provided as follows, among others -

"Kehadiran di setiap premis yang digunakan bagi tujuan pelaksanaan pilihan raya tertakluk kepada Arahan Tetap yang berkuatkuasa yang mana tidak menjejaskan pelaksanaan proses pilihan raya.

Kod QR MySejahtera/Buku Pendaftaran Kehadiran (nama, nombor telefon dan masa) WAJIB disediakan di setiap premis yang digunakan bagi tujuan pilihan raya. Setiap individu yang hadir ke premis-premis ini hendaklah mengimbas Kod QR MySejahtera atau mencatat kehadiran di dalam buku yang disediakan (nama, nombor telefon dan masa).

Menempatkan petugas untuk menyemak status risiko dan gejala bagi setiap individu yang hadir ke premis tersebut. Hanya individu berstatus "Low risk" atau "Casual contact" sahaj