Local government elections are constitutionally permissible - What will Pakatan do now?

Local Council elections can be held by the Pakatan Rakyat States. There is nothing stopping them from doing so, since our Federal Constitution allows for Local Council elections. Yeo Yang Poh, former Bar Council President, have written an article on this, which is found below.

Remember, there have been so many other views that it can be held. But sadly, Pakatan Rakyat, despite its pre-election promises to have local council elections, have yet to have it. Like the UMNO-led BN government, they have chosen to appoint their party members (and some NGO/professionals/others) as Local Councillors. The majority were party members. (GE-March 2008, more than 2 years 2 months ago).

To be fair, in March 2010 the Penang government wrote to the EC about holding Local Council elections. II am still not sure whether they were merely asking for the EC's opinion on the matter, or were asking the EC to proceed and hold the Local Council Elections. See earlier post:- Local Council Elections - Penang leads by asking EC to conduct elections..

Then, the Selangor MB then said that Selangor will follow suit, and they had written to the Election Commission. But, a perusal of what Selangor did seem to be just asking the EC their views. See earlier post:-Selangor not keen on Local Councilors chosen by the people - they prefer to appoint. A new attempt to pacify LC Elections advocates..

By the 24th of March, the EC replied saying 'No'. See earlier post: - Promised Local Council Elections, Procrastinated, Breached?, Now doing a poll ...wayang??, 

If they had asked the EC to conduct Local Council Elections, and the EC said 'No', then the next obvious step would have been to go to court....but both Penang and Selangor did not do so. Penang only did a 'poll', and there was some suggestions about a 'mock-election' . See earlier post:-Local Council Elections - Penang Exco Suggest Mock Elections (an old suggestion made since 2008?)

Why the UMNO-led BN was not interested in bringing back Local Council elections was revealed in a written reply to a question by Gwo-Burne Loh [MP Kelana Jaya]. Question and reply can be found in earlier post:-Promised Local Council Elections, Procrastinated, Breached?, Now doing a poll ...wayang??

Human Rights groups and civil society groups who were strongly campaigning for local council elections were 'silenced' by Pakatan Rakyat's strategy of appointing them as Local Councillors..but thankfully, new leadership have emerged, and civil society groups are once again calling for local council elections -Coalition for Good Governance(CGG) Media Statement on Local Council Elections.. Even if the Election Commission does not want to conduct/assist, you can always allow the people to choose the Local Councillors by elections - and, then the State can appoint these persons as Local Councillors. There are so many ways - but the question is whether Pakatan Rakyat has the political will to allow people to choose their own Local Councillors?)Remember, that civil society and others have made various suggestions on how Local Councillors could be democratically chosen (if not elected through Local  Council Elections). -Selangor not keen on Local Councilors chosen by the people - they prefer to appoint. A new attempt to pacify LC Elections advocates..

Now, Yeo Yang Poh says it again that Local Council Elections can be held.... and we wait and see what the Pakatan Rakyat States will do. Seek more legal opinions? Tell us to wait...since the next GE is coming soon? What will they do?

The federal government would like to see local government elections dead and buried. Many NGOs and activists, and a handful of state governments, wish to witness the phoenix rising.

This article presents the writer's views on the state of the law relating to local government elections in Malaysia. The desirability, or otherwise, of such elections, which has received much public debate, will not be dealt with here.

This article will not canvass all the legal arguments that can be envisaged on the subject. Rather, it will focus on just a couple of the major arguments – those that the writer finds clear, indisputable or least controversial.

It deliberately leaves out arguments that are debatable in nature, because the answer sought can already be found via those arguments that are crystal clear.

Dead and buried

Those who say that local government elections are no longer permitted by the existing law argue their position along the following lines:

a) Since the coming into force of the Local Government Act 1976 (LGA), local councillors are to be appointed rather than elected, as required by Section 10 of the LGA. Section 15(1) of the LGA is crucial and central to their argument. It is worded as follows:

“Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.”

b) Section 15(1) is said to have the effect of abolishing and prohibiting local government elections. Therefore, the Local Government Elections Act 1960 (LGEA), which provides for local government elections, is said to be no longer effective, even though the LGEA has never been repealed. One might say that its operation has been “suspended”. Currently, it is argued, the law does not allow local government elections, because of the existence of Section 15(1).

To the proponents of the above argument, the case is closed.

But is it?

Avoiding or opting out of Section 15(1)

Many who hold opposing views have suggested that a state government could opt out of the application of Section 15(1) of the LGA and, after doing so, hold local government elections (by relying on the LGEA or otherwise).

Their argument is as follows:

a) Section 1(4) of the LGA provides that:

“The State Authority may [notwithstanding that it had earlier adopted the Act or part thereof] 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 bylaws.”

b) Therefore, it is argued that a state government can invoke Section 1(4) to bring itself out of the application of Section 15(1) and related provisions. After opting out, the obstacle for holding local government elections would have been removed, and the state government can then hold such elections.

This approach appears simple. But it proceeds on the basis that Section 15(1) of the LGA is indeed the valid and current law on the matter of local government elections. If Section 15(1) is not the valid or applicable law on the matter, then there will be nothing to be opted out of.

In my view, that is precisely the case, i.e. that Section 15(1) of the LGA is not the valid or applicable law on local government elections, for several reasons.

I wish to presently discuss two of those reasons (and that which I consider clear and beyond question).

What is the current applicable law on local government elections?

Why LGA is invalid

There are two main reasons why Section 15(1) of the LGA is invalid.

The first reason is that Section 15(1) is unconstitutional and therefore void.

The second reason is that the LGEA is, in fact, currently the applicable law on local government elections. I will explain.

To recap, Section 15(1) states 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.” Section 15(1) obviously has the intention and effect of prohibiting local government elections. That is where its problem lies.

We have Article 113(4) in our Federal Constitution, which provides that: “Federal or State law may authorize the Election Commission to conduct [local government elections]”. What does this constitutional guarantee mean? It means the following:

a) Local government elections are constitutionally permissible.

b) Local government elections are mandated but are not mandatory.

c) Local government elections cannot be prohibited altogether (short of an amendment to the Constitution), since any prohibition will have the effect of nullifying the constitutional intent of Article 113(4).

Now, we have on the one hand Article 113(4) of the Federal Constitution that says that local government elections are permissible; and on the other hand Section 15(1) of the LGA that says that local government elections are impermissible. Section 15(1) is inconsistent with Article 113(4).

Which will prevail?

The answer is clear and simple. The Constitution prevails. Any statutory provision that is inconsistent with the Constitution will be void. This is a basic constitutional-law principle, and is also expressly stipulated in Article 4(1) of the Federal Constitution itself.

I come to the second (and separate) main reason why Section 15(1) of the LGA is not the applicable law on local government elections.

It is not disputed that, not only was the LGEA never repealed, it was in fact revised in 1991, pursuant to the Revision of Laws Act 1968. It became Act 473, with effect from 16 September 1991. This is a most significant fact, because of the legal effect of a revised law.

Section 10(2) of the Revision of Laws Act 1968 provides as follows:

“On and after the date from which a revised law comes into force, such revised law shall be deemed to be and shall be without any question whatsoever in all courts and for all purposes whatsoever the sole and only proper law in respect of matters included therein and in force on that date.” (emphasis mine)

This means that the LGEA has, since 16/9/1991, unquestionably become, for all purposes, the sole and only proper law in relation to local government elections!

The result is this. Apart from being unconstitutional and void, Section 15(1) of the LGA also cannot be the current applicable law relating to local government elections; because it is the revised LGEA that is (as from 16/9/1991) the “sole and only proper law” on local government elections. This must be so “for all purposes”, and beyond question by any court at that!

Beyond doubt

It is quite clear that:

a) Section 15(1) of the LGA is unconstitutional and void; and

b) In any event, the existing law concerning local government elections is in fact the LGEA 1960 (as revised in 1991), supported by the constitutional mandate and guarantee of Article 113(4) of the Federal Constitution.

To me, this is not just arguably so. It is plainly so. It is so, beyond doubt.

If the law were a science, or a mathematical formula, I would bet my life on the above analysis. But obviously the law is neither a science nor mathematics; therefore I shall not wager even a penny, for I am acutely aware that there is a huge gap between a legal opinion and a judicial pronouncement, at times bridged not entirely by meticulous analysis of sound legal principles.

The challenging reality in today's Malaysia that confronts matters of this nature can sometimes mean that the argument of strength might overshadow or cloud the strength of argument.

We will have to wait and see.

YEO YANG POH, a senior lawyer, is a former chairperson of the Bar Council. - Malaysiakini, 5/6/2010, Rising from the ashes: Local gov't polls in M'sia