Sunday, April 13, 2008

What's fine for some is not for others

New Sunday Times
by Yong Huey Jiun

Roger-KarpalSome say it is a populist measure. But response to the waiver of summonses by the new state administrations is all but warm. YONG HUEY JIUN talks to the different parties to find out what about the controversy

ONE of the first things Penang Chief Minister Lim Guan Eng did after assuming power was to waive summonses issued (before March 11) for parking and illegal hawking offences. Lim's announcement, which appeared to stun many, came hours after he was sworn in as the chief minister.

For Chong Foo Shen (not his real name), the announcement came a little too late. The 32-year-old settled his two parking summonses in January.

"I think the waiver is unfair to those who have paid their summonses. In the interest of fairness and equality, they should get a reimbursement," says Chong.

Little did Lim know then the seemingly innocuous (even populist, some may say) move would spark a controversy that would spiral out of control and plague his leadership a month after taking the helm.

Already beleaguered with problems stemming from the power transition, what was supposed to be a "fresh start" for the new administration has generated a backlash among critics and legal experts.

Joining the torrent of criticism, Bar Council member Roger Tan denounced Lim's action as interfering with the power of local authorities, lacking rudimentary knowledge of law principles, and violating the (Article 8) Federal Constitution.

But Lim stood firm and so did Perak Menteri Besar Mohammad Nizar Jamaluddin, who also declared a similar waiver in Perak.

Despite objections from several quarters, Perak senior state executive councillor Ngeh Koo Ham said in a statement on Wednesday the state government would stick to its decision.

He defended the state government's action, noting that "the state government has jurisdiction over the local government" (Schedule 9), as enshrined in the Federal Constitution. DAP national chairman Karpal Singh backs his fellow party member's statement, saying that "the Constitution supersedes any provisions of the Local Government Act".

Tan disagrees: "The Local Government Act is a legislation made under Article 76(4) of the Federal Constitution, of which Schedule 9 is subject to. Schedule 9 merely states the state government has the power to legislate; however, it is not a licence for the state government to ignore existing laws."

The main contention is that local councils are not state government departments. There have been strident calls for the revival of local council elections. Some say subjecting the local government to the directive of the state government undermines or defeats the very purpose of the push for reform.

While critics blast the move, Karpal claims the waiver is a form of amnesty.

An amnesty is granted on rare and significant occasions, such as the release of prisoners during the 25th Merdeka anniversary.

That Karpal referred to the waiver as an amnesty -- one which all will benefit from regardless of political preferences -- should strike a chord given that the opposition's victory was a historic event. But Tan argues that "chief ministers do not possess the power to grant amnesties".

Tan went one step further to note that some of the summonses may have expired.

"Technically, they may be prosecuted if they have expired. And only the local authorities have the power to prosecute."

Karpal says that the waiver does not bypass any authority as long as prosecution has not commenced. In past interviews, he had said: "The amnesty granted cannot be said to impinge on the powers of the public prosecutor because the compound notices and summonses have not reached the stage of prosecution."

In the midst of the ruckus, Housing and Local Government Minister Datuk Ong Ka Chuan had said chief ministers could advise the local authorities on the issue but ultimately, it was left to the heads of councils to decide.

When Lim first declared the waiver, he had said he wanted to "reduce the burden faced by the people, especially the poor". In one of his speeches, Lim said there had been many complaints on how the summonses were issued haphazardly and policies which were not carried out in a transparent manner.

Some offenders refuse to pay because they feel aggrieved, says executive council member Chow Kon Yeow, who is in charge of local government.

"They get a ticket even if they park for just a while. Or hawkers are slapped with a RM250 fine when they narrowly breach the perimeter of the stipulated area."

S.M. Mohamed Idris, president of the Consumers Association of Penang, says the waiver is clearly a violation of law. He points out that the move is unfair to those who have settled their summonses.

"Car owners should not feel burdened because if they can afford to own a car, surely they can afford to pay up," he adds.

While the proposal may seem unfair to law-abiding citizens, Gunaseelan M. Segaran, with three outstanding summonses, welcomes and expresses support for the move.

"This does not happen regularly. It is a one-time waiver by the chief minister to express his appreciation for the people's support," he says.

It is not known how much the waived summonses would total. From a monetary point of view, Chow does not think the councils' operations would be affected as they are "uncollected compounds". But local councils face financial constraints and frequently have to rely on federal grants.

"It does not make sense to waive the summonses since they serve as a source of revenue for the local authorities," says Tan.

Right or wrong, some parties have grown weary of the issue and are ready to put it behind them. Whether one is for or against the waiver, both sides agree there is a greater urgency to focus on the myriad of issues of reform facing the administration in the next few years.

"It should not deflect attention from other more important issues," stresses Idris.

"The matter should be laid to rest. It's time to move on."

The Attorney-General's Chambers and the Perak government were not available for comment.

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