Thursday, August 14, 2014

Local Council Elections - Federal Court says no to Penang's State Law that tries to have LC elections?

Malaysians are still being denied the right to have local government elections, that is the right to elect Local Councilors and Mayors. Even Palestine has local government elections.

In Malaysia, we only have the right to elect MPs and ADUNs(State Assembly Persons) but still no right to elect our own local government - the Local Councils. At present, they are appointed by the State Government.

For people, local government is very important as they have the power to decide on what happens in their area - quit rent(cukai pintu), business permits/approval, approval of 'development' projects, environment and beauty of our community, upkeep of roads and drains, etc... [Federal government has apparently taken over garbage collections and grass cutting... and Local Councils just remain as conduits of complaints....]

When not elected, Local Council is really 'not so much bothered' with what the local people wants - after all, the people have no power to choose or remove bad Councillors. All that Local Councils need to do is be 'good and friendly' with the State Government. 

It is sad that in Malaysia, there is also no democratic elections at the communities - kampung, kampung baru, taman, kampung orang aslim etc... now, these can very easily be done by the State Governments, and is not barred by law as is the Local Council Elections. I hope that Pakatan Rakyat would at least get these elections done...

So how does the government get the approval of the people of the community? From their own political party reps? From the JKKKKs (appointed people)? Because, I see projects approved and built and the people are totally left out - the very people in the community who will suffer the effects of such projects... The practice of even having Notice Boards calling for comments, objections, etc before the approval of a project is given seem to have just disappeared... and we know of 'already approved projects' only when the developer moves in and starts constructions and it generally is too late to do anything...If people in Kuantan, knew about LYNAS, for instance, before the factory was build ...., I am sure it would have been democratic and people would have had much to say...

Is Malaysia a democracy? Or is it really NOT? The right and the ability of the people to protest or voice out against government decisions and corporations are slowly withering away... Peaceful Assembly - so difficult now, and the suing for damages after the event will only deter such actions, Publishing in print or internet - well, that is slowly gone they use Defamation Suits, and other laws... Shame of Pakatan MB Khalid Ibrahim who is now suing Malaysian Insider, a credible online alternative media... I believe in the freedom of expression and opinion - and if one feel that they have been wrong then use your words - not sue people in court. 

At the moment, it looks like a government also is looking to control social media and the internet - looks like 'good Malaysians' are those that just 'Listen....Listen' and not question anything your government and the big corporations(and rich powerful people) do - we are expected to watch TV, enjoy sports, shout 'Malaysia Boleh',.... but not question, think or offer a differing opinion, just obey...and survive... Sometimes, it feels that we are being treated like SLAVES...not human beings, for human being have rights and should always be free to exercise these rights...

The Federal Court has now given Pakatan Rakyat the needed justification for not holding Local Council Elections - but, as was always asserted there are alternatives how the 'appointments' could be democratically chosen people.... One example, is to have democratic elections in kampungs, taman, etc ... and from those elected, let them elect representatives for the State to 'consider and appoint' as Local Councillors. There are options if there really is political will...

What did the Federal Court actually say - we have to wait and see the full judgment? Remember the Federal Court was only making a ruling on that Penang Enactment - maybe another enactment may work, maybe there are other ways - apply to the Local Goverment Council - which if they refuse could also be challenged in Court, maybe other ways .....I hope Pakatan will actively look into this...

Penang cannot hold local elections, says Federal Court

The DAP-led Penang government has no jurisdiction to conduct local government elections, says the Federal Court. – The Malaysian Insider file pic, August 14, 2014. 
The DAP-led Penang government has no jurisdiction to conduct local government elections, says the Federal Court. – The Malaysian Insider file pic,

August 14, 2014.The Federal Court has ruled that the DAP-led Penang government has no jurisdiction to conduct local government elections.

Judge Tan Sri Raus Sharif, who led a five-man bench, said the state could not unilaterally suspend provisions in the Local Government Act to hold polls to elect councillors.
“Such exemption will also be against national policy‎," he said when delivering the unanimous decision today.
Raus said to conduct such elections would also go against the Federal Constitution.  He said an enactment passed by the state legislature in 2012 to hold local council election was also null and void as it went against the Federal Constitution and laws passed by Parliament.

He said any attempt to hold elections must go through the National Local Government Council which the state had failed to do.

The Penang government was of the view that local government elections are state matter and the legislative assembly has the authority to hold the polls.

This is provided under the Ninth Schedule (state list) and Article 113 (4) of the Federal Constitution.

In May 2012, the Penang assembly passed the Local Government Elections (Penang Island and Province Wellesley) 2012 Enactment which provides for the Election Commission to conduct local government elections in the state.

The Penang government informed the EC that the enactment would come into force in Penang by January 31, 2013.

However, the state did not obtain any commitment from the EC to conduct the elections to the Penang Municipal Council and  Seberang Perai Municipal Council.

In June 27, 2013, the Federal Court allowed the Penang government leave to commence a petition to challenge the validity of a provision in the Local Government Act 1976 which prevented state legislatures from holding local government elections within their states.

The question of law was whether Parliament has the power to enact laws relating to local government elections.

In the petition, the Penang government sought to declare Section 15 of the Local Government Act 1976 invalid as it claimed that the section was void because Parliament acted beyond its powers under the Federal Constitution in enacting that provision.

Also named as petioner is former president of the non-governmental organisation Aliran, P. Ramakrishnan, a local resident and ratepayer.

The state government and Ramakrishnan said local government elections were held in George Town in 1951, conducted by the local authority.

They said the Penang assembly passed the Local Government Elections (Penang Island and Province Wellesley) Enactment 2012 and subsequently gazetted.

Senior federal counsel Alice Loke Yee Ching argued that section 15 was a valid law.

She said that section was validly enacted under Article 76 (4) of the Federal Constitution as under that article, Parliament could make laws on subject matter within the legislative powers of the state.

Loke said even though local government elections were within the state legislative power, if the state law was inconsistent with a federal law, it (the state law) would be invalidated to the extent of any inconsistency.

Chief Minister Lim Guan Eng, who was in court, told reporters said the only recourse available was to convince the Local Government Council to hold elections or wait for a change in the federal government.

"We have tried and failed but we respect the court ruling," said a disappointed Lim, who is also DAP secretary-general.

He said the state wanted to return the third vote to the ratepayers who sustained their local governments.

"It is appropriate for them to vote in councillor and mayors who determine the quality of life in their jurisdiction.”

Currently, councillors and local government heads are appointed by the state governments.

Ramakrishnan said the decision was no surprise to him as he got the vibes when the judges, who heard submission from lawyer Tommy Thomas last April, were rushing the lawyer.

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