THE decision by the Penang and Perak governments waiving all summonses for illegal hawking and traffic offences in the two states prior to March 11 and March 18 respectively, though a politically populist move, has nevertheless raised some concern among legal circles in regard to its legal validity and permissibility.
This is not the first time I am raising such an issue. In "Be you never so high, the law is above you" (NST, Jan 29, 2006), I criticised the police for frequently discounting traffic compounds and the former menteri besar of Perlis, Datuk Seri Shahidan Kassim, for rewarding a teenage traffic offender with a bicycle.
Then, I wrote: "It is a good thing for the government to be seen to be kind, caring and compassionate, but it is quite another to send the wrong message that offenders are above the law because punishment can be postponed or ameliorated. This undermines the rule of law."
In answering this question whether the two chief ministers or state authorities have the power to write off the summonses, one needs to examine first the laws in which the summonses were issued.
Firstly, summonses against illegal hawking are issued under by-laws made by the local authority under Section 73 of the Local Government Act (Act 171) and confirmed by the state authority under Section 103. The offences can be compounded by the local authority pursuant to by-laws made under Section 102(t) of Act 171. (Compounding an offence means offering an offender a chance to settle a specified sum within a stipulated period without being prosecuted in court for the offence.)
On the other hand, a parking summons is issued pursuant to an order made by a local authority under Section 72(1) of the Road Transport Act 1987 (Act 333).
The powers to compound are given to an officer of the local authority specially authorised in writing by the minister of housing and local government under Section 120(1)(e) of Act 333. Such officer is usually the mayor or the president of the local authority.
In this case, a state authority has no jurisdiction over by-laws made under Section 72 of Act 333. While Act 171 does deal with enforcement of by-laws of a local authority, this is however restricted to by-laws made under Act 171, and not under any other written law.
Likewise, the power to prosecute has been given to the officers of local authorities in respect of illegal hawking under Section 120 of Act 171 and illegal parking under Section 377 of the Criminal Procedure Code 1999.
In fact, the compound amounts are a source of revenue for a local authority. The reason why local authorities prefer to collect the monies from the compounds rather than prosecute the offender is because any fines meted out in court belong to the federal government.
Turning now to the lawfulness of the waiver, it is important to appreciate that a local authority is not a state government department.
It is an autonomous body. Under Section 13 of Act 171, a local authority is a body corporate which has perpetual succession and it "may sue and be sued, acquire, hold and sell property and generally do and perform such acts and things as bodies corporate may by law do and perform".
Further, it has power to issue licences under Act 171. It also has wide-ranging powers to issue development orders under the Town and Country Planning Act 1976 and regulate street, drainage and buildings under the Street, Drainage and Building Act 1974.
However, there are three situations under Act 171 where the chief minister and state authority may direct the local authorities.
Firstly, Section 9 allows the state authority to give the local authority from time to time directions of a general character which are not inconsistent with Act 171 on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by Act 171.
However, these must relate to matters which "affect the interests of the local authority area". In my view, granting the waiver does not fall within this category,
Secondly, Section 10 (7) provides that where there is a deadlock between the mayor or president and the councillors as to the exercise of any of his powers or of the powers of the local authority, the decision of the chief minister is final and binding. To my mind, neither does this situation apply in the absence of any deadlock between the two parties.
Thirdly, the waiver can be granted by a chief minister if he has taken over the functions of the local authority or the mayor in the public interest under Section 165 of Act 171. This is not the case either.
It follows that the chief ministers and the two state governments are actually using administrative power to compel the mayor/president of the local authorities, who are beholden to the former for their positions, not to take any action on the summonses.
This threatens the independence and autonomy of a local government. In fact, it was for this reason that in 1980 a DAP stalwart, Lim Cho Hock, took the Perak state government and Ipoh municipal council to court when the state authority appointed the menteri besar of Perak to be also the president of the Ipoh Municipality.
In this respect, it is interesting to observe that those people who advocate in one breath for the re-introduction of local government elections are in another wanting to direct and interfere with a local authority to do something to enhance their political popularity.
Administratively, the local authorities can withhold any action on the outstanding summonses but it is still questionable whether existing laws actually permit them to grant a blanket waiver and immunity from prosecution.
It is also not clear whether the waiver decision applies to summonses wherein the period to pay the compounds has expired.
In any event, in order to promote accountability and transparency, the two state governments should now disclose the amount of revenue which will be lost to the local authorities by waiving these summonses.
All in all, a government must be a government of the law, by the law, and for the law.
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