Youth Suffrage: Outliers of Democracy
This article delves into the unprecedented case of Undi18 v Government of Malaysia with Lim Wei Jiet, the legal representative of the petitioners.
SUARA MANDIRI Issue #4
“Youth of today are the leaders of tomorrow.” Quoted from Nelson Mandela, it is an earnest imploration of believing in the young for they are to assume the helm of leadership in the future.
In tandem with the sentiments of the quote above, a multitude of nation building initiatives and movements are conjured, to foster leadership attributes as well as encourage unity, patriotism, and political participation among Malaysian youth. However, the delay or denial of youth participation in the electoral process seems to be a stark idiosyncrasy of this conception.
Amongst two other equally fundamental provisions for democracy, Article 21 of the Universal Declaration of Human Rights (UDHR) of which Malaysia is signatory of, states:
“the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.
In context, universal and equal suffrage denotes that the right to vote is innate and it is not to be abridged by differences in Malaysians of all walks of life, including age. Despite the Constitutional (Amendment) Act 2019 of which Section 3(a) amends Article 119 (1)(a) to lower the voting age from 21 to 18, and Section 3(b) amending Article 119 (4)(b) to allow automatic voter registration to replace the application of registering as voters, enforcement efforts have been stagnant.
The unhurried pace of the authorities in implementing the amendments had prompted 18 individuals, aged between 18 and 20 to bring about legal action against the government for the deferment of young voters’ registration. HAKAM Youth delves into the unprecedented case of Undi18 v The Government of Malaysia with Lim Wei Jiet, one of the legal representatives of the 18 petitioners, to decipher the proceedings of the case thus far.
Undi18 vs Government
On 2 April 2021, Undi18, represented by 18 youth leaders and young activists between ages 18 and 20, filed a judicial review against the government and the Election Commission (EC). The crux of this lawsuit were the delay in lowering the voting age to 18 and failure of establishing automatic registration in accordance with the Undi18 bill previously passed in 2019.
As much as this valorous endeavour left Malaysians astonished, the idea of youth suing governments is not a new one. Many nations like the United States, Canada and Korea have, in fact, borne witness to teenagers bringing action against their governments.
In South Korea, high school senior Kim Yujin and 29 other young activists are suing the government, claiming the parliament’s recent change to the nation’s climate change laws does not sufficiently protect their future. The South Korean Framework Act on Low Carbon, Green Growth was amended in December, with the aim of reducing annual nationwide greenhouse gas emissions to 536 million tons by 2030, a 24.4% drop from 2017. However, much to the young activists’ dismay, this target is way below the target set in the 2015 Paris agreement which essentially required that global warming be kept below 2 degrees Celsius.
In Juliana v United States, 21 youths had filed a suit against the US government on grounds that the government had knowingly violated their rights of life, liberty, and property as well as breaching its own duty to protect public grounds by encouraging and permitting the combustion of fossil fuels.
Reverting to the issue at hand, is the Malaysian government’s action constitutional? The Attorney General of Malaysia voiced objections, calling it a premature action as he opines the implementation of a constitutional amendment to lower voting age must be done together with another constitutional amendment, the replacement of the manual registration system with automatic voter registration (AVR).
Legal representative of the petitioners, Lim Wei Jiet, contended that the action of the government in delaying the implementation of the said bill is unconstitutional as Section 3(a) of the Constitutional (Amendment) Act 2019 is preordained and the non-compliance as such should be challenged. On that note, the petitioners possess the locus standi to do so since the issue at hand directly concerns them and their right to be a part of the democratic process of the country.
Another challenge beleaguers - precedence of the youth taking on the government for social change has not had a completely positive denouement. In the above-mentioned case of Juliana v United States, the petitioners are still seeking justice to this very day as a firm, concrete decision has never been given, citing numerous reasons.
Of course, there have been instances where youths have succeeded in holding the government accountable for their actions. In Colombia, 25 young people won their lawsuit against the government for failing to protect the Colombian Amazon rainforest. The court concluded that deforestation violated the rights of both the youths and the rainforest, and therefore ordered the government to reduce it to net zero by 2020. In Pakistan, the courts for the very first time, allowed a minor to proceed with her climate change lawsuit on its merits.
Judicial Review and the Way Forward
Despite the passing of the Constitution (Amendment) Bill 2019, it was never enforced. The long pursuit and fight for youth participation in politics was forced to come to a screeching halt. Upon the government’s attempt to further delay the implementation of the Undi18 Bill, the youths of Undi18 seized the reins and filed a lawsuit against the Government through a judicial review application.
An application for judicial review must go through Order 53 of the Rules of Court 2012. This order protects public authorities through the setting out of specific and stringent procedures for aggrieved parties in seeking relief against a public authority upon an infringed right.
In the judicial review application, the youths of Undi18 sought few declarations. The declarations were, among others: (1) the Government’s action in delaying the implementation of lowering the voting age from 21 to 18 is irrational, illegal, disproportionate and amounts to voter suppression; (2) 18 to 20-year-old’s have the legitimate expectation that they will have the right to vote by July 2021.
Further, the applicants also sought to quash the Government’s decision to delay the implementation of lowering the voting age 21 to 18, and compel them to immediately put into motion Section 3(a) of the Constitutional (Amendment) Act 2019 in any event, on or before July 2021.
Order 53 Rule 3 of the Rules of Court 2012 necessitates a grant of leave to be obtained in order to proceed with the judicial review application. At this stage, the leave application should be made ex parte with an exception of the participation of the Attorney General or Attorney General’s Chambers (“AGC”), who plays a role in sifting out frivolous and vexatious applications.
In light of the ongoing leave application by the applicants of Undi18, the AGC raised preliminary objections, among others, averring Undi18’s judicial review application to be “against the spirit of constitutional amendment whereby all necessary laws and regulations need to be amended before the automatic voter registration can be enforced.”
The hearing on 6 May 2021 was adjourned to allow Undi18 to respond. The beacon of hope remains lit that the Court would grant leave for Undi18’s judicial review application, for the judicial review is a pivotal avenue to oblige the Government into enforcing Section 3(a) of the Constitution (Amendment) Act 2019.
Implications of Delay: Will it be the Demise of Democracy and Trust?
The delay in gazetting and implementing the new voting age comes with a set of repercussions, affecting the active participation of the Malaysian youth in the upcoming election. It is of utmost importance that the youth aged 18-20 be given the right to vote as the bill was unanimously passed by the Parliament and the constitutional amendment has taken place preceding the royal assent way back in 2019.
The reason for such delay as stated by the Electoral Commission inter alia, was due to the pandemic and various Movement Control Orders (MCOs) between March 2020 and up until today. However, it should not be an excuse for the Electoral Commission as an institution responsible for overseeing the electoral process in Malaysia to absolve its own liability in preparing for the new voting age as it has been three years since the amendment with no real progress.
One of the importance of the implementation of the constitutional amendment is, any delay is a form of an outright suppression of the youth’s rights to vote. The rights of the 18-20 years old to vote has now become a constitutional right after being legislated by the Parliament, the elected representatives of the people in Malaysia. Thus, the implication of the deprivation of the youth’s right to vote is that it is against the very precepts of democracy.
In order for current and future voters to have faith in the Malaysian democratic system, particularly the youth, the executive arm must exercise its constitutional duty in gazetting the constitutional amendment and compel the Electoral Commission to implement it. The interest of the youth has to be protected and they need to be given the opportunity to participate in the future of the country. The delay will also result in the disenfranchisement of youth in the political arena, resulting in them being prevented from having control in choosing their representatives and the drafting of policies, which directly affects their interests as Malaysian citizens.
Consequently, such implementation in the near future will play an important role in instilling trust in the government and the judiciary in Malaysia. The implication of the delay in terms of trust will be two-fold as the deprivation of the youth’s right to vote means that the executive is denying the will of the Parliament and the government has failed to carry its constitutional duty in bringing the amendment into effect. If electoral exclusion is continuously carried out in the next election, it will risk alienating and infuriating an active segment of the people in Malaysia. As a result, the loss of faith in the present executive arm may be inevitable.
The implications of the delay, should it persist, may put the trust and confidence of the people in the judiciary in jeopardy as well. The court has the power to change the current narrative and allow justice to prevail upon adopting the case and ensure that 7.8 million new voters will not be deprived of their voting rights after the prolonged delay. The youth are utterly dependent on the judiciary to play its part as the protector and upholder of justice in Malaysia. The democratic state of Malaysia is now at risk and a future generation living in the ghost of the system we once used to believe in, must be avoided at all costs.
Passing on the Baton
It is without a shred of doubt, young people have a stake in the future of the nation. The constitutional amendment in 2019 saw millions of Malaysians rejoicing, but their happiness turned out to be short-lived when the incumbent government gave less-than-enthusiastic responses and evaded queries with regards to the delayed enforcement of the lowered voting age.
As tweens and teenagers all over the country anxiously await the outcome of this case at the edge of their seats, they are still plagued with the ineluctable question: will the political muscles flex in the eleventh hour and render their efforts of attaining their inherent right to vote futile?
The youth is the most imperative and dynamic fragment of the populace in every country. The pursuit of the 18 individuals and those standing in solidarity with them, has proven that they are very much capable of being the torch bearers. It is time a path is cleared out for these zealous minds to invoke an inclusive nation, strengthen democracy, and assume the role of foot soldiers of progress - but first, allow them to cast their votes.
 Universal Declaration of Human Rights (UDHR) <https://www.un.org/en/about-us/universal-declaration-of-human-rights>
 ‘After Undi18 pushed to 2022, 18 Malaysian youths sue PM, EC for right to vote by July’ (The Malay Mail, 2 April 2021) <https://www.malaymail.com/news/malaysia/2021/04/02/after-undi18-pushed-to-2022-18-malaysian-youths-sue-pm-ec-for-right-to-vote/1963241>
 Heesu Lee, '‘We Want Drastic Change.’ South Korean Teens Sue Government To Demand Bigger Cut In Emissions' (Time, 2020) <https://time.com/5802264/south-korea-teens-sue-government-climate-change/> accessed 23 April 2021.
 Juliana v United States 947 F.3d 1159 (9th Cir. 2020).
 Parker, L. 'Kids Suing Governments About Climate Is A Global Trend' (Environment, 2019) <https://www.nationalgeographic.com/environment/article/kids-suing-governments-about-climate-growing-trend> accessed 23 April 2021.
 Order 53 of Rules of Court 2012
 Halsbury’s Laws of Malaysia - Administrative Law [Volume 3(1)]
 Undi 18 Press Statement
 Order 53 Rule 3(1) of the Rules of Court 2012
 ‘Undi 18 will only be implemented in Sept 2022’ (The Malaysian Reserve, 2021) <https://themalaysianreserve.com/2021/03/26/undi-18-will-only-be-implemented-in-sept-2022/> accessed on 18 April 2021.
 ‘Youth groups urge govt to review Undi18 delay’ (New Straits Times, 2021) <https://www.nst.com.my/news/nation/2021/03/677312/youth-groups-urge-govt-review-undi18-delay> accessed 21 April 2021.
 ‘Group files judicial review against Undi18 delay’ (Free Malaysia Today, 2021) <https://www.freemalaysiatoday.com/category/nation/2021/04/02/group-files-judicial-review-against-undi18-delay> accessed on 20 April 2021.