Penang proposes to issue a gazette notification exempting all local authorities in Penang from applying Section 15 of the Local Government Act 1976 before seeking a court declaration compelling the Elections Commission to conduct local government polls.
This is another condition voters must insist on when candidates come around canvassing for votes in the coming general election campaign: will your coalition of parties support the immediate restoration of local government elections if it wins power? If not, buzz off! Don’t play games with us.
Tommy Thomas is a brilliant constitutional lawyer and the Penang state government is doing well to listen to his advice.
Guan Eng explains:
In 1956, George Town became the first local council in the country to have a fully elected council with the president elected from among the councillors. In 1965, local government elections in Malaysia were suspended. The official reasons given was that the country was facing the threat of Confrontation initiated by Indonesia.
The Local Government Act passed in 1976 , provided for only appointed councillors and presidents (Section 10) and was adopted by the Penang State Government. All councillors, including the presidents were appointed by the state government of the day. One of DAP’s key agenda is the restoration of local government elections.
The Penang PR state government has pressed for local government elections to enable councillors and mayors to be directly elected ever since we took power in 2008. Amongst some of the efforts taken by the Penang State Government to restore the third vote(after vote for parliament and state seats) are as follows:-
1. On 11/8/2009 The Penang State Government moved a resolution in the State Assembly calling on the Federal Government to bring back local government elections. This was passed by the Penang state assembly.
2. The State Government also engaged a 3 panel lawyer Dato Yeo Yang Poh, Mr Tommy Thomas and Malik Imtiaz and to provide legal opinion to the Penang State Government or our rights and powers to compel local government elections to be held.
3. The Penang State Government wrote a letter to National Council of Local Government (NCLG) under Article 95A of the Federal Constitution NCLG date on 13/7/2009 and requested bring up the topic of local government elections in this council. However the NCLG, rejected the State’s request.
4. Based on the advice of the 3 panel lawyers, I wrote to the Election Commission on behalf of Penang State Government on 4/3/2010 requesting the Election Commission to conduct local government elections. Under Article 113 (4) Federal Constitution, it is explicitly state that Federal or State law may authorise the Election Commission to conduct elections other than those referred to in Clause (1).
As Clause 1 refers to parliamentary and state seats, clearly the state government has jurisdiction over whether to hold election for municipal seats since local government is under the State list. The Ninth Schedule of the Federal Constitution of powers within the State List explicitly states that the state government decides over local government elections.
5. The reply by Election Commission dated 23 March 2010 to the Penang State Government rejecting the Penang State government’s request to restore Local Government Elections is disappointing. The Penang state government has no choice but to institute legal proceedings to compel the Election Commission to comply wth the state government’s directive to conduct local government elections.
As a first step, the Penang State Government has been advised by Tommy Thomas, at a meeting with Tommy Thomas and some EXCO members yesterday, to first negate Section 15 of the Local Government Act 1976. Section 15 states: “Not withstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.” In other words section 15 nullified all local government elections.
Tommy Thomas has also advised that the State government issue a Gazette notification exempting all the local authorities within Penang from applying Section 15 of the Local Government Act. This would result in section 15 not being applicable in Penang and is the first step towards seeking a court declaration to compel the Election Commission to conduct local government elections.
I will be proposing at the next EXCO meeting next week directing the State Legal Advisor to issue this gazette notification. This is a necessary precursor to take the issue to court to seek a declaration, which will be conducted by Tommy Thomas.