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 KUALA LUMPUR, Mon: The final session of the 1st day of the Malaysian Law
Conference kicked off slightly later than the rest as the previous session had
overrun its set time but it was well worth the wait for those who had stayed on
to hear the speakers of the final session.
Mr. Derek Fernandez was the first speaker for the evening and started off
the session by explaining that after a long day most people who attended theses
types of conferences would be a bit tired and hence he would dispense with the
usual power point presentation that he had originally prepared in favour of a
short DVD entitled “Twelve-11”.
The basis of the DVD was a first hand account of the family members of the
victims of the Highland Towers tragedy of the 11th December 1993.
Many may not remember the horrors of the tragedy nor the impact of the landslide
that caused 48 deaths and the collapse of Tower 1 of the Highland Towers but the
video was a shocking reminder.
Mr. Fernandez went on in the video to say that what happened then could happen
again if the local authorities did not have check and balances to ensure that
such an unfortunate occurrence would never again occur.
He went on to say that most of these disasters are all man made and due to human
error of which 95% of it could have been avoided if the proper planning and
approvals were met and kept to.
He expressed his dissatisfaction with S.95 of the Street and Drainage Act which
gives local authorities immunity from prosecution. The full effect of this could
be seen in the 2006 judgement of the 10 year battle by the families of the
victims of the Highland Tower tragedy.
In that case, the Majlis Perbandaran Ampang Jaya was granted immunity and held
not liable for any of the damages and claims made by the Plaintiffs. He went on
to give the analogy that the local authority could compel one to tear a wall
down but if the tearing of the wall caused damage or death the local council
would be immune to any liability.
He was of the opinion that the local authorities officers should be held
personally liable for all decisions and that if they were found to be in the
wrong; that they should be sacked immediately.
He reminded the floor that local authorities elections have been suspended since
1965 and that in turn has caused the loss of accountability which inevitably led
to the tragedy of the Highland Towers and many other disasters like it.
He went on to tell us that the Sabak Bernam local council recently filed their
defence in a suit where they were sued after the recent floods. They stated that
they were immune from prosecution by virtue of S.95 and even if they were
negligent they were immune.
He rounded up his talk by stating that the lessons were never learnt and that
without accountability local councils will never learn and that the touching
video he showed us is a terrible reminder of this. He stated that the issue is
whether the oaths the local council swore to perform were in fact performed and
whether the local councilors had integrity. He defined integrity as doing the
right thing even if there is no one looking. He then ended his talk by proposing
several criteria for the appointments of councilors.
The next speaker was the evergreen Dato’ P.G. Lim, a speaker of much
experience. Dato’ started by giving the floor a brief history and overview of
the local government and how it has evolved over the years.
The local government appears to have its earliest beginnings in Penang where as
early as 1801 a committee of Assessors was established “to lay out the town in a
manner most suitable to the requirements of the inhabitants” This first
committee was an elected committee.
She stated that the problem was that there were no elected local government as
they were all nominated which tended to promote lone interests. She called for
the need to have elected local governments so that a proper forming of local
governments. She stated that she was proud that in 1956 the first municipality
to have a fully elected council was her hometown of Penang.
She went on to state that the first and last Local Authority General Elections
was held in 1963 which went ahead smoothly and efficiently but was unfortunately
suspended when the “Konfrontasi” between Malaysia and Indonesia was declared
which resulted in the declaration of a State of Emergency on the 3rd of
September 1964.
She then went on to give a brief account on the Royal Commission of Enquiry on
Local Authorities which was chaired by Senator Athi Nahappan which was appointed
with the following terms of reference:
a) to enquire into and consider whether the continued existence of any category
or categories of local authorities, particularly those of local authorities in
which the capital of a state is situate, serve any useful purpose;
b) to report on the following matters and to make such recommendations, as in
their opinion the circumstances require, taking into consideration the adequacy
or otherwise of the existing laws with regard to local authorities…
The commission completed its work 3 years later and concluded inter alia that
every state should have a local authority and that each local authority should
have elective representation.
However the Minister for Local Government and Housing submitted a report that
supported the Local Government Act as proposed by the commission as well as
agreeing with the view of elective representation.
However 2 of the seven members had dissenting views and submitted their
“independent rather than a minority report” which although agreed to a Local
Government Act, they disagreed that all local government units should function
on the basis of party politics “at present time” which really meant that they
were against the elected representation at local councils. This view was
unfortunately adopted by the government.
She went on to give example of Datuk M. Kayveas causing a furore when he called
local authorities “secret societies” because of the lack of transparency and
accountability. She added that this disease is not only found at local
government levels but has also reached national levels as well.
She then called for the reintroduction of the local government elections and
ended her speech with a quote from the Athi Nahappan report, “ Local government
… is the kindergarten of democracy. It is the government that is the nearest to
the people. Grassroot democracy is cultivated here. If democracy is understood
by the people at this level and if they participate in its exercise they will
understand it better at the state and central levels…”
“In a country like Malaysia a suitably restructured local government identified
with democracy, can serve not merely local interests but also reinforce and
consolidate national unity, besides sustaining and preserving a democratic
institution at local level.”
She ended her session by stating that, “there should be no taxation without
representation” and called for the reintroduction of elected local governments.
The third speaker for the session was the well known R. Nadeswaran or
more commonly known as Citizen Nades who decided to focus his talk on one
subject and one person alone. His power point presentation was entitled, “The
Palace that Zakaria Built” and the person in focus was none other than the
infamous YB Zakaria Bin Mat Deros. He hastened to add that it was not a personal
attack on the man who was a law unto himself.
He ran through various articles of the misdeeds of the who he calls the “most
prolific law breaker” as well as several other local councilors who had flouted
the law as well.
He went on to show that the Prime Minister had called the actions of these
wayward councilors, “unacceptable” and that even the Deputy Prime Minister had
stated that, “the UMNO is not happy with what is happening”.
He then informed the floor that due to his investigative reports which had
exposed these misdeeds by the local state councilors, he has been in turn been
labeled a racist and “anak keling” and has even been blamed and labeled as a
tool of the opposition party to sabotage the current government.
He went on to add that despite his misgivings of these few councilors he was
sure that the local governments contained men and women who are willing to work
hard and are transparent but he blames the “surat sokongan” which various
elected officials always sends in supporting various applications which most of
the time are illegal which prevents the local council from doing their job.
The final speaker of the evening was Mr. Ng Seing Liong the President of
the Real Estate and Housing Developers Association (REHDA)
He started off by quoting Section 10(2) of the Local Government Act 1976 (Act
171) which defined the guidelines for the appointments for local councilors.
He highlighted the fact that this section requires that the person should be
ordinarily resident in the local authority areas who has wide experience in
local government affairs or one who has achieved distinction in any profession,
commerce or industry or are otherwise capable of representing the interests in
the local authority areas.
He then went on to describe the role of the local authorities in the Housing
Industry. He states that generally the local authorities are responsible for
public health and sanitation i.e. the provision and maintenance of public places
and amenities, waste and rubbish disposal, environment protection, town planning
and building control, social and economic development and maintenance of all
infrastructures within the local authority areas.
He then confined his talk on the aspects which were directly relevant to housing
only;, which he puts as the enforcement and implementation of town planning and
land use, building control and the provision of corresponding infrastructural
support of such development.
He then delved a little on the achievements of the local authorities to date and
stated that they have so far performed reasonably well but that there are
nevertheless areas that warrant attention to promote a more effective, efficient
and complimentary role of the local authorities towards the housing industry.
He continued by giving several proposals for further improvement of local
councils with regard to the housing industry such as a rating system for local
authorities as per the announcement by the Deputy Prime Minister of rating from
one star to five star to promote improved performance and efficient delivery
system by the corresponding local authorities. This he said was a good move
forward. He adds that this must be complimented by the commitment of the state
governments to nominate and accept councilors of suitable caliber only and cease
the current practice of appointing councilors as political hand-outs.
He continued to say that the approval process must be
expedited and has lauded the governments efforts in trying to improve the
delivery system.
He also called for the equitable implementation of all laws, regulations and
guidelines pertaining to housing. He asked for the repeal of MASMA and also that
the imposition of capital contributions, development charge and social
contributions must be fair and equitable especially so when these costs are
eventually borne by the homebuyers.
He also called for the local authorities to draw up and gazette corresponding
local plans to provide a transparent blueprint for development in line with the
nations’ “National Urbanisation Policy”.
He states that the local authorities should only enforce the minimum standards
as provided in all legislations and guidelines and not enforce the optimum
standards on a discretionary basis. Fine tuning of lay-out and building design
should be left to the discretion of developers based on target groups that
houses are intended for sale so long as there is full compliance to safety and
health rules.
He rounded up his talk by saying that houses should remain affordable to all
Malaysians and that the local authorities should do their utmost to allow higher
densities of development..
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Circular No 297/2008
Some of the speakers had not emphasized sufficiently on the ROLES OF THE LOCAL AUTHORITIES.
This made it a wasted opportunity - for them NOT to have said what they ought to have said in order that the Local Authorities might have been reminded of their roles, duties and responsibilities - and not just collecting the assessments and fines all the time. It is indeed a very sad situation.
Tan Peek Guat