Thursday, November 2, 2006

A system that breeds misdeeds and corruption

I welcome the statement from the Menteri Besar of Selangor, Datuk Seri Dr Mohd Khir Toyo yesterday (“Khir: Zakaria told to resign before audience” - NST, Oct 31) that the MB wanted more professionals to serve on local councils.

However, he said the Local Government Act 1976 (“Act 171”) had to be first amended.

In my opinion, no amendment to Act 171 is required in order to appoint professionals who are residents of the local authority area as councillors. Section 10(2) of Act 171 is clear, that is, the state authority may appoint persons who in its opinion have achieved “distinction in any profession”.

If the Selangor state authority is unsure of this, then it should consult the National Council for Local Government set up under article 95A of the Federal Constitution.

The Article states that the federal government or any state government may consult the National Council for Local Government in respect of any matter relating to local government and its duty is to advise that government on any such matter.

Article 95A(5) also provides that it is the duty of the National Council for Local Government to formulate from time to time in consultation with the federal government and the state governments a national policy for the promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the federal and state governments shall follow the formulated policy.

In fact, the National Council for Local Government is no ordinary body as it is chaired by the deputy prime minister and each state is often represented by its Chief Minister. This is the body, in my view, which should immediately sit down and formulate guidelines on the appointment and re-appointment of councillors within the ambit of section 10(2) of Act 171.

As I said in my article on Sunday (“Do laws grind the poor, and rich men rule the law?”), any state government which decides not to comply with the policy formulated by the National Council for Local Government may risk losing financial grants and loans from the federal government.

Further, if state governments cannot get their act together in effectively supervising and managing their local authorities, then the time will come when the federal government may have to assume more power and control over them.

Provisions are provided by removing ‘local government’ matters from the state list under the Ninth Schedule to the Federal Constitution and placing it under the concurrent list.

In any event, appointing professionals such as architects, engineers, surveyors, lawyers and doctors who are free from any political affiliations or personal interest to sit on the council is a step in the right direction.

It will not only form a check and balance on the manner in which powers and duties of local authority are carried out, but it also promotes good governance in local administration. It is akin to appointing independent directors to public listed companies.

Of course, professionals are not free from some of the perils of holding public office – the temptation of succumbing to corruption and self-aggrandisement.

To avoid accusations of favouritism or other sorts of improper conduct in appointing certain professionals, it is always good practice to first get their respective professional organisations to make the recommendations.

Again, the test is that the person to be appointed must have achieved professional distinction – and not those professionals who are already on the advisory panel of the local authority.

But, in practice, many professionals will be unwilling to serve because it means that their firms are prohibited from acting for the local authority, and they may also have to recuse themselves each time a matter handled by their firm arises for deliberation. This is provided for in section 35 of Act 171 which reads: “No councillor shall by himself or his partner or agent act in any professional capacity for or against the local authority of which he is a councillor.”

All said, it is still a good move to allocate two or three seats in each local authority for independent persons, such as professionals, to sit on the councils.

In the case of Datuk Zakaria Mat Deros, I could not agree more with the view of Umno vice-president, Tan Sri Muhyiddin Yassin (‘He may have tainted party’ - NST Oct 31), that elected representatives should not hold the post of municipal councillor. (Zakaria is also the state assemblyman for Port Klang.)

Muhyiddin cited Johor as an example where if one was an assemblyman or Member of Parliament, there was no necessity for him to sit in municipal councils.

He went on to say that by allowing others, such as party leaders, from the lower ranks who are not elected representatives to be local councillors, there would be better division of labour, more focus on responsibilities and no conflict of interest.

Muhyiddin was most spot-on in this issue, which is one of a conflict of interest.

This reminds me of 1980 when the menteri besar and state government of Perak were taken to court by an opposition leader, Lim Cho Hock, because the Perak state authority appointed the menteri besar as president of the Ipoh Municipal Council.

It was contended that the appointment would put the menteri besar in a conflict situation when it came to the latter exercising his powers under sections 10(7) and 165(1) of Act 171. Even though Lim failed in the action, the practice of a menteri besar also holding the post of president of municipal council, since that case, has always been frowned upon.

Article 64(1)(b) of the Selangor state constitution provides that a state assemblyman is disqualified if he holds an ‘office of profit’.

Even though an election court had ruled before that holding a position in the local authority did not fall within the meaning of ‘office of profit’ (see Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor, 1998), it is, I am sure, the general view that the practice of vesting too much power in one person should always be discouraged as one should always take heed of the oft-repeated words of Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”

Moreover, the state assemblyman may find himself in a conflict situation if the conduct of the local authority of which he is also a councillor is debated in the State Legislative Assembly. Again, this can be another policy which the National Council for Local Government should formulate.

It is the hope of many that all local authorities will practise good governance when administering the affairs of their local authority area, always asking whether their actions will protect and benefit the local community.

May they always be guided by the definition of good governance enunciated by the United Nations Economic and Social Commission for Asia and the Pacific:

“Good governance has eight major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimised, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.”

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