©The
Sun (Used by permission)
by Derek John Fernandez
(First of a two–part article)
THERE is little doubt that the previous perceived failures of local government to honestly and diligently perform their duties to the best of their ability, for the benefit of ratepayers in their jurisdiction so as to enrich the lives and improve the quality of residents was a significant factor in the loss by Barisan Nasional (BN) in the last election, especially in urban areas.
There had been so much unhappiness with local government that Pakatan Rakyat (PR) made local government reform one of their main promises in their respective parties’ election manifestoes. In particular they promised the return of the local government’s elections and a more transparent and accountable local government.
Nevertheless, the recent appointment a majority of political appointees in Penang and Seberang Prai Municipal Councils and the failure to–date to appoint councillors for local councils in the states of Perak and Selangor has given rise to protests by the public and doubts as to whether the promises made before the last general election would be kept. The public has high expectations for the de–politicisation of local government until and unless elections are held and there is a demand for a more meaningful participation by civil society in the administration of local government.
At the heart of this issue is the restoration of local government elections and the need to ensure that Pakatan Rakyat is working hard towards this goal by taking the necessary steps to do so to the best of their ability.
There are mixed views by different experts as to whether the states which are controlled by PR can legally hold local government elections without the Federal Government’s consent. Regardless of these views, PR must try and if they fail because the courts think otherwise they would have still fulfilled their promise to the people. The case for holding local government elections without the Federal Government’s consent is:
» Article 113 (4) of the Federal Constitution provides that federal or state law may authorise the Election Commission to conduct elections other than those referred to in Clause 113(1);
» Clause 113 (1) refers to elections for the House of Representatives and Legislative Assemblies of the states.
» This means that the state government can pass laws for the elections of local government and can authorise the Election Commission to do so. Note also that under Article 95B (1) (a) of the Federal Constitution in the 9th schedule the state government has power in relation to local government.
» In fact the Local Government Elections Act 1960 was passed for this purpose but was suspended under the Emergency (Suspension of Local Government Elections) (Amendment) Regulation 1965 made under the Emergency (Essential Powers) Act 1964 which regulations was preserved in the 1979 Emergency (Essential Powers) Act 1979 as if made in 1965.
» However, in 1976 the Federal Government acting under
Article 76 (4) of the Federal Constitution passed the Local Government Act
1976 which enacted Section 15 removing any rights to local government elections
under any previous law and Section 10 providing for the appointment of the
councillors.
» It is important to note that at that time the only law for local government elections was the Local Government Elections Act 1960 which was already suspended by the Suspension of Local Government Elections Regulations 1965 made under the Emergency (Essential Powers) Act 1964. Nevertheless, the Federal Government thought it fit to enact the Local Government Act 1976. Article 76 (4) making it a federal law in respect of a state matter for the purpose of promoting uniformity of the laws. The Federal Government did not use Article 76 (3) which would have made it a state law and therefore could be repealed by the State Legislature.
» Nevertheless, the Legislature specifically enacted Section 1 (4) of the Local Government Act 1976 which provides as follows:
“The State Authority may, notwithstanding the provisions of subsection (2), by notification in the Gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any by–laws”.
» This means that the State Government can exempt any area of the local government from Section 10 and Section 15 of the Local Government Act and enact fresh laws providing for local government elections under Article 113 (4) and paragraph 4a of the 9th Schedule of the Federal Constitution. Such laws can be similar in substance to the Local Government Elections Act 1960 or in whatever form the State feels is correct.
» It should be noted that despite the Emergency (Essential Powers) Act 1979 it is still arguable that even the (Suspension of the Local Government Elections) Regulations is no longer valid because there is no longer any Emergency and the fact that Parliament passes laws which are not required by a reason of emergency implies that there is none, if not all the laws of Parliament passed after 1965 would be invalid. This is so because all these laws do not state that there are required by reason of the emergency as required by Article 150 (5) of the Federal Constitution. In any event, it only suspends the operation of the Local Government Elections Act 1960 which is now superseded by the Local Government Act 1976 which “covers the field” for local government matters. Thus it can be persuasively argued that there is no inconsistency between the Local Government Act 1976 and in particular the exemption under Section 1 (4) and the Emergency Regulations.
(Part 2 follows on Friday)