The Star=
<=
strong>(Used by permissio=
n) Sund=
ay March
16, 2008
What the law says
1. The last local government elections were held in 1963 under the Local
Government Elections Act 1960. However, they were suspended after the
Confrontation with Indonesia pursuant to the Emergency (Suspension of Local
Government Elections) Regulations 1965 (Emergency Regulations) made by the =
Yang
di-Pertuan Agong on March 1, 1965, under the Emergency (Essential Powers) A=
ct
1964.
2. Then Emergency Regulations were amended by the Yang di-Pertuan Agong =
on
Aug 9, 1965, to allow councillors to be appointed by state authorities. The
1965 regulations were extended after the May 13, 1969, incident by Emergency
(Essential Powers) Act 1979 which were deemed to have come into force on Feb
20, 1971.
3. Section 6 of the Emergency (Essential Powers) Act 1979 provides that
regulations made under the 1964 Act shall remain in force as if they had be=
en
made under the 1979 Act. It is interesting to note that section 2(4) of the
1979 Act provides that an Essential Regulation “shall have effect
notwithstanding anything inconsistent therewith contained in any written la=
w,
including the Federal Constitution or the Constitution of any state.”=
The
Emergency Regulations are still subsisting and have not been revoked. =
4. In July 1965, a Royal Commission of Enquiry on Local Authorities was
appointed under the chairmanship of Senator Athi Nahappan to look into
revamping the local authorities. The commission recommended the resumption =
of
local government elections, stating that: “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.&=
#8221;
5. However, when the Local Government Act 1976 (Act 171) was enacted, it=
was
expressly provided in Section 15(1) that “notwithstanding anything to=
the
contrary contained in any written law, all provisions relating to local
government elections shall cease to have force or effect.” This means
that the provisions in the Local Government Elections Act 1960 relating to
elections have also ceased to apply.
6. However, some have argued that it is still legally possible as Section
1(4) of Act 171 allows the state authority to exempt any area within any lo=
cal
authority from any provision of Act 171, including Sections 10 (appointment=
of
councillors by the state authority) and 15(1). The state legislature can th=
en
enact state laws to govern local government elections as it is empowered to=
do
so under paragraph 4(a) of the State List.
7. Article 113(4) of the Constitution also provides that state law may
authorise the Election Commission to conduct elections other than parliamen=
tary
and state legislative elections.
8. In other words, a state authority may suspend the application of Sect=
ions
10 and 15 of Act 171 and then cause the state legislature to enact laws
governing elections for those local authority areas.
9. However, to enact state laws governing local government elections mig=
ht
still technically conflict with Sections 10 and 15(1) of Act 171 and the 19=
65
Emergency Regulations.
10. As Act 171 and the 1965 Emergency Regulations are Federal laws, Arti=
cle 75
of the Constitution provides that if any state law is inconsistent with a
federal law, the federal law shall prevail and the state law shall, to the
extent of the inconsistency, be void.
11. Of course, it can also be argued that with the exemption, the confli=
ct
does not arise. But it will still conflict with Emergency Regulations. And =
this
is a risky approach as the local government elections held pursuant to state
laws can be challenged in court. If this is successful, the elections and
decisions made by the councillors risk being declared null and void. =
12. Therefore, holding local government elections is possible if the
Emergency Regulations are revoked; Section 15(1) are repealed and Section 1=
0 is
amended. This can only be done if the Barisan Nasional government, which ha=
s a
simple majority in parliament, also wants it.
13. Politically, the federal government under the control of the Barisan
Nasional may just do it in order to control the local authorities in the
Opposition states as most local authorities depend on the federal government
for financial assistance. But this can work both ways. It may also be a gau=
ge
for the government to test public opinion before it calls the next general
election.
14. To the rakyat, it is a good thing as it will become a new tier of
check-and-balance on state governments, under the Barisan Nasional or
otherwise.
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