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The Star
by Roger Tan
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) Act
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 been
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 law, 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Regulations are still subsisting and have not been revoked.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.”
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 local
authority from any provision of Act 171, including Sections 10 (appointment of
councillors by the state authority) and 15(1). The state legislature can then
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 parliamentary and state
legislative elections.
8. In other words, a state authority may suspend the application of Sections 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 might still
technically conflict with Sections 10 and 15(1) of Act 171 and the 1965
Emergency Regulations.
10. As Act 171 and the 1965 Emergency Regulations are Federal laws, Article 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 conflict 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 10 is amended.
This can only be done if the Barisan Nasional government, which has 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 gauge 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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