Judges Datuk Zulkefli Ahmad Makinudin and Datuk Low Hop Bing, in dismissing an appeal by 22 Internal Security Act detainees, held that their inability to cast their votes was not caused by the act or omission of the commission.
Datuk Zainun Ali, who dissented, held the commission had violated the constitutional right of the detainees by denying them the right to vote in the 11th general election on March 21, 2004.
She also held that the commission's failure to respond to the detainees' letters seeking facilities to vote was unreasonable.
They were walk-in voters registered in different constituencies throughout the country and not postal voters.
Unable to cast their votes, they filed an action in the High Court seeking, among others, a declaration that their fundamental right to vote was breached and they were not accorded equal protection under the Federal Constitution.
In naming the commission as respondent, the detainees, represented by Edmond Bon, also asked for punitive, aggravated and exemplary damages.
Low in his judgment said the Constitution and election laws empowered the commission to conduct elections but it was in no position to allow the detainees to leave their detention centres.
Zulkefli said the detainees were barred from voting at any polling station except the one in their constituency.
Zainun said it was the duty of the commission to make available voting facilities and it was for the detainees to exercise their voting rights as enshrined under the Constitution.
"The issue raised by the detainees is not their physical inability but the unavailability of such facility to do so."
Zainun said she was unable to accept the commission's argument that it was busy preparing for the election to reply to the detainees' letters.
"In my view, this bureaucratic arrogance is passe."