©The Star (Used by permission)
REFLECTING ON THE LAW
By SHAD SALEEM FARUQI
IN all countries with a federal–state division of powers, it is quite common for jurisdictional disputes to flare up now and then between the centre and the states. Such conflicts have been rare in Malaysia. However, over the last decade and especially since 2008, many tensions have surfaced.
A few weeks ago, Penang threatened to go to court to compel the Election Commission and the Federal Government to hold local authority elections in the state. As in most constitutional disputes, the issues are rich and riveting and no open–and–shut answers are available.
Who has power over municipal elections? In our federal–state division of powers, local authority elections are explicitly mentioned as matters within state competence by the Federal Constitution’s Schedule 9, List II, Paragraph 4(a).
In addition, Article 113(4) clearly encompasses, though it doesn’t mandate, elections for our third tier of government. Article 113(4) states that “Federal or State law may authorise the Election Commission to conduct elections other than (to the House of Representatives and the Legislative Assemblies of the States)”.
There is a comprehensive federal legislation for municipal elections by way of the Local Government Elections Act 1960. In the early years of our independence these provisions were indeed relied upon to hold elections for all local authorities.
However in 1965, with the miasma of Confrontation enveloping the country, the Federal Government employed its emergency powers under Article 150 to enact the Emergency (Suspension of Local Government Elections) Regulations 1965 to suspend all local authority elections. This law expired last year with the lifting of the emergency. However, the story does not end there.
Our Constitution is designed in such a way that Parliament can, under Article 76(1)(b) and 76(4), pass uniform laws on local government for all states save for Sabah and Sarawak.
This power was exercised to enact a host of laws like the Local Government Act 1976 and Local Government Elections Act 1960.
In addition to Article 76, there is the consultative National Council for Local Government chaired by a federal minister who has a casting vote and a big clout in the council. Under Article 95A(5), the council has the power to formulate binding policies on local government.
Under Article 95A(6), the council must be consulted on any legislation relating to local government.
Section 15(1) of the Local Government Act 1976 explicitly puts a stop to all municipal elections. “Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.”
Section 10(1) of the Act went on to create appointed local authorities.
The combined effect of Sections 15 and 10 seems to be to bury any dream of local authority elections anywhere in peninsula Malaysia. However, supporters of municipal democracy point cleverly to an escape route.
The LGA 1976 in Section 1(4) allows a state authority to “exempt any area within any local authority from all or any of the provisions of the Act”. The Penang state authority has adroitly relied on this remarkable provision to exempt all its municipalities.
After opting out of Section 15(1), the state assembly enacted a Local Government Elections Enactment 2012 to try to revive local authority elections. Hence, the dispute on riveting issues of statutory interpretation.
Firstly, it is a question of the constitutionality of Section 15(1) of the LGA.
Lawyers for the Penang Govern–ment may argue that Article 113(4) of the Constitution permits local elections but the LGA prohibits them.
On the other side, it will be submitted that local authority elections are not explicitly mentioned in Article 113(4), which only permits an election authorised by federal or state law, if there is such authorisation.
Secondly, Section 1(4) of LGA permits “any area within a local authority” to be exempted from the LGA. Can only some areas be exempted? Or can the whole of Penang be made to opt out of Section 15(1)?
Thirdly, if there is a conflict between Penang’s Local Government Elections Enactment 2012 and Section 15(1) of the LGA, which law shall prevail?
In City Council of George Town v Penang (1967), the court clearly sided with the federal law due to the existence of Article 75, which states: “if any State law is inconsistent with a federal law, the federal law shall prevail”.
Fourthly, did the Penang Assembly pass its 2012 election law after consulting the National Council for Local Government under Article 95A(6)? Is such consultation a procedural prerequisite?
Fifthly, is the policy of the National Council absolutely binding on the Penang Government due to the provision of Article 95A(5)?
Sixth, according to lawyer Yeo Yang Poh, the Local Government Elections Act 1960 (LGEA), having been revised in 1991 is, under the Revision of Laws Act 1968, “the sole and only proper law in respect of” local authority elections. However, Andrew Yong points out the LGEA does not deal with elections to post–1976 local councils and only to pre–1973 local authorities.
Seventh, once a valid Act of Parliament (the LGA 1976) causes the LGEA 1960 to “cease to have force or effect”, how can the LGEA become “the sole and only proper law in respect of” local authority elections?
Eighth, even if the LGEA is still effective, the conflict between LGEA 1960 (as revised in 1991) and the LGA 1976 needs to be resolved.
In sum, the issues are indeed very engaging and the Federal Court will have to iron out the legislative creases. Whichever way the legal decision goes, the political debate on local authority elections will continue for a long time.
> Shad Saleem Faruqi is Emeritus professor of Law at UiTM