Judicial review is constrained by public health laws, and SOPs enacted to manage infectious disease outbreaks can lawfully restrict voting rights.

Introduction

[1] On 7 December 2022, I dismissed the applicant, Tamileswaaran a/l Ravi Kumar's application for the following reliefs:

(a) an order of certiorari to quash the decision or action of preventing and/or denying the applicant of his right to vote on 12 March 2022;

(b) a declaration that the 1st respondent, the Election Commission of Malaysia ("the Election Commission") had wrongfully prevented or denied the applicant of his right to vote on 12 March 2022 on the ground that the applicant was in a quarantine period;

(c) a declaration that the Election Commission was wrong under the law in preventing or denying the applicant of his right to vote on the ground that the applicant had contracted an infectious disease;

(d) a declaration that the Election Commission had violated the applicant's constitutional right under art 119 of the Federal Constitution;

(e) damages for the violation of the applicant's constitutional right.

[2] This judgment contains the full reasons for my decision.

Background Facts

[3] The applicant is a registered elector for the Skudai constituency that is represented in the Johor State Legislative Assembly. The State of Johore held its elections for the State Legislative Assembly and the polling day was scheduled on 12 March 2022 ("polling day"). The applicant's polling station was at the polling centre known as Sekolah Kebangsaan Taman Tun Aminah 2 ("the polling centre"). The elections took place at the time when the country was still grappling with the Covid-19 pandemic. Standard operating procedures had been put in place by the Director-General of Health which provided detailed procedures and protocols to be followed for the Johore State Elections as a measure to curb and manage the spread of Covid-19.

[4] On 7 March 2022 the applicant was tested and found to be positive for Covid-19 positive. He was ordered to undergo home quarantine or isolation under the Standard Operating Procedure ("SOP") of Phase 4 of the National Recovery Plan. Isolation was mandatory under this SOP for persons found to have been infected with the Covid-19 virus. On 12 March 2022, while in his 6th day of isolation the applicant claimed to have self-tested himself at his home and found the result showing negative for Covid-19.

[5] Armed with the self-test result he attended his polling centre against the mandatory requirement of the said SOP and when his MySejahtera status showed that he was positive for Covid-19. MySejahtera is an application developed by the Government of Malaysia to assist in curbing and managing the Covid-19 outbreak in the country. It has many features including the current Covid-19 status of a person. The applicant was turned away from the polling centre by virtue of the Prosedur Operasi Standard (SOP) Pencegahan Covid-19 Bagi Pelaksanaan Pilihan Raya Umum (PRU) Dewan Negeri Johor Ke-15 ("SOP for the Johore State Elections") according to the election officers on duty at the polling station. It was said that persons positive for Covid-19 were not allowed in the polling centre.

[6] It is not in dispute that the applicant's MySejahtera status showed that he was "high risk" due to being positive for Covid- 19. Only persons who were negative for Covid-19 and without any symptoms in relation to Covid-19 were allowed into the polling centre and to their respective polling stations to vote. The other categories of persons allowed into the polling centre but to a specially constructed tent in the polling centre to vote are: (i) persons negative for Covid-19 on their MySejahtera but showing symptoms for Covid-19; and (ii) persons known as 'patients under investigation ("PUI") or 'persons under surveillance' ("PUS") who have a written permissio