Thursday, March 13, 2008

Polls show democracy is very much alive

The results of the 12th general election have rendered the Barisan Nasional government incapable of amending the Federal Constitution or making uniform laws for all the states without support from the opposition, observes ROGER TAN

THE people have spoken in the 12th general election. Their voice is supreme and we must respect it. The election results show that democracy is very much alive in our land. As American journalist Sydney J. Harris once said: "Democracy is the only system that persists in asking the powers that be whether they are the powers that ought to be."

The effect of this election not only means that the Barisan Nasional government will now be unable to amend the Federal Constitution without the support of the opposition, neither will it be able to make uniform laws for all the states in respect of any matter enumerated in the State List (Second List, Ninth Schedule of the Federal Constitution) under Article 76(3) of the Federal Constitution if the opposition states do not adopt them, save for matters relating to land and local government under Article 76(4).

The other effect will be on the local authorities and councillors appointed by previous state governments in Penang, Kedah, Perak and Selangor.

Under the Local Government Act 1976 (Act 171), it is the state authority (which is essentially the state executive council) and not the federal ministry of housing and local government which has control over the local authorities.

Under Section 10 of Act 171, the mayor or president and councillors of the local authorities are appointed by the state authority. Even though their terms of office cannot exceed three years, their appointments can still be revoked by the new state authority.

Therefore, the new state authority may replace the current mayor, president and the councillors with new appointees. Or it may also decide to keep some or all of the current councillors because the menteri besar and state authority can still give directions to the mayor or president and the local authorities from time to time.

Similarly, the penghulu or village heads and members of the Village Security and Development Committee or Jawatankuasa Keselamatan dan Kemajuan Kampung (JKKK) can be replaced too.

The next issue is the opposition's election promise to re-instate with immediate effect local government elections. Is this legally possible?

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 and Emergency (Suspension of Local Government Elections) (Amendment) Regulations 1965 made under the Emergency (Essential Powers) Act 1964.

Since then, councillors have been appointed by state authorities. The 1965 regulations were extended after the May 13, 1969 incident pursuant to Section 6 of the Emergency (Essential Powers) Act 1979, which provides that regulations made under the Emergency (Essential Powers) Act 1964 shall remain in force as if they had been made under the 1979 Act.

Then, when 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.

However, some have argued that this is still legally possible as Section 1(4) allows the state authority to exempt any area within any local authority from any provision of Act 171, including Sections 10 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.

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.

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.

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 (presumably still in force).

As Act 171 is a federal law made under Article 76(4) and not under Article 76(3) of the Federal Constitution, which deems laws passed by Federal Parliament as state laws, it follows that Article 75 of the Constitution provides that if any state law is inconsistent with a federal law (Act 171 and the emergency laws), the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.

Of course, it can also be argued that with the exemption, the conflict does not arise. But that 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.

Therefore, holding local government elections is possible if Section 15(1) is repealed and Section 10 amended. This can only be done if the Barisan Nasional government, which has a simple majority in parliament, also wants it.

However, nothing is impossible these days. Politically, the federal government under the control of the Barisan Nasional may just do it, as most local authorities depend on the federal government for financial assistance. It may also be a gauge for the government to test public opinion before it calls the next general election.

To the rakyat, it is also 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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