Saturday, March 29, 2008

Moves to waive summonses, cut wastage seen as populist

The Straits Times, Singapore
by Chow Kum Hor

THE state governments led by the coalition of opposition parties have moved swiftly to address some of voters' top concerns, such as suspending building projects on hillsides.

The moves have largely gone down well, although some critics have charged that they are populist in nature.

Hours after being sworn in as Chief Minister of Penang, the Democratic Action Party's (DAP) Lim Guan Eng offered a one-time amnesty for all summonses related to parking and hawker licence offences.

In Perak, Menteri Besar Mohamad Nizar Jamaluddin, from Parti Islam SeMalaysia, waived summonses issued by local councils in the state.

On Tuesday, Mr Lim cancelled the bookings for five new Proton Perdana V6 cars, worth RM623,000 (S$270,000), ordered by the previous administration, saying it was part of his government's move to cut wastage.

The locally-made vehicles were meant for the state's executive council (Exco) members.

Mr Lim has also barred DAP leaders from applying for land in Penang to prevent any possible abuse.

In Selangor, Menteri Besar Khalid Ibrahim ordered a review of two hillside projects in a residential area near Kuala Lumpur, following concerns about possible landslides.

The projects in Bukit Antarabangsa involve the construction of 200 bungalows and 400 shops.

Households in Selangor will also enjoy up to 20 cu m of free water from June, which will save them about RM11 each.

Tan Sri Khalid, who is from Parti Keadilan Rakyat, has also decided to waive property taxes for registered places of worship.

Prior to this, mosques, temples and churches paid between RM100 and RM300 a year in such taxes.

In its place, a token annual fee of RM1 will be imposed.

Klang Valley Taoism Association chairman Yeoh Choo Beng has applauded the move.

'This is good as Chinese temples operate on contributions from devotees. We also hope the government will help the Chinese temples...with special allocations for our activities,' he was quoted as saying in The Star newspaper.

But not everyone is impressed. Mr Roger Tan, a lawyer, said these were merely populist moves.

'The Chief Ministers do not have the power to waive summonses. Only the local authorities can do so,' Mr Tan told The Straits Times.

Selangor Exco member Ean Yong Hian Wah has denied that the new government was out to score points with voters.

'After taking power, we can see clearly how we can cut wastage and improve the people's lives. We are just implementing what we feel is right, not because we want to be popular,' Mr Ean Yong told The Straits Times.

Another Exco member, Dr Xavier Jeyakumar, dismissed fears that the waivers would burden the state financially.

He said places of worship in the state collectively pay only a few hundred thousand ringgit per year.

'It doesn't cost much. We can more than make it up by cutting on wastage. One way is to have open tender and not ordering new official cars or renovating our offices,' he added.

On the free water for households, he said Selangor would negotiate for fairer deals with water supply companies. The savings will be passed on to consumers.

Friday, March 28, 2008

'Karpal's statement smacks of arrogance'

New Straits Times
by David Yeow

KUALA LUMPUR, Thurs: The Penang and Perak governments do not have the power to waive summonses for parking offences, a senior lawyer said, describing Karpal Singh’s statement to the contrary as "arrogance".

“Karpal's statement smacks of arrogance,” Roger Tan said in a statement yesterday.

Tan was referring to the DAP chairman and MP for Bukit Gelugor’s criticism on Wednesday that lawyers objecting to Penang and Perak governments' waiver of summonses “do not have within their grasp elementary principles of law”.

“Now that the DAP is in power in some states, they should practise what they preach, which is to be always tolerant and respectful of opposing views,” he said.

Penang Chief Minister Lim Guan Eng and Perak Menteri Besar Mohamad Nizar Jamaluddin waived payment for previous summonses as a token of appreciation to the electorate for voting them in.

“Even a first-year law student understands the elementary principle of law that you can only grant an amnesty if you have the legal authority to do so,” Tan said, adding that the two states are subject to the Local Government Act 1976 which does not provide powers for chief ministers to waive summonses.

“At most, they can only reduce the compound amount but they have no power to waive it under section 120 of the Road Transport Act 1987 and the Road Transport (Compounding of Offences) Rules 2003,” said Tan.

“By directing the local authorities to waive the summonses, the two state governments are acting unlawfully. They are using their non-existent administrative powers to compel the mayor or president of the local authorities not to take any action on the outstanding summonses.

“This is a clear interference with a local government by a state government.”

Tan said all elected representatives were required to take an oath to “preserve, protect and defend the constitution”.

“There cannot be equality of law if law-breakers are rewarded, unless a refund is also given to the law-abiding citizens who have settled the summonses.”

Wednesday, March 26, 2008

Discretion 'not absolute'

New Straits Times
by Santha Oorjitham and Regina Lee

KUALA LUMPUR: A ruler must choose a menteri besar wisely in order not to go against the principles of parliamentary democracy and cause a crisis, legal experts said.

Senior lawyer and Bar Council member Datuk Muhammad Shafee Abdullah said provision for the ruler to exercise his discretion "is only applicable in a situation where the sultan may need to invoke the exception to requirements that the MB must be a Malay and a Muslim".

"If a ruler persists in appointing a person from the winning party who does not command the confidence of the majority, the democratic process is put in jeopardy," he said.

"This unpleasant state of affairs ought to be avoided in order to bring harmony between the various institutions."

Gua Musang member of parliament Tengku Razaleigh Hamzah was reported as saying on Monday that the Terengganu Regency Advisory Council's appointment of Datuk Ahmad Said, in opposition to a majority of state assemblymen, as menteri besar should not be questioned.

"The sultan acted within his powers in appointing the person who, in his judgment, is likely to command the confidence of the majority of the members of the state assembly," he said.

He described the impasse as not a constitutional crisis, but a crisis of government.

Shafee rebutted that while the impasse over the appointment of the Terengganu menteri besar was not a constitutional crisis, it could lead to one if not resolved quickly.

Retired Court of Appeal judge Datuk Shaik Daud Md Ismail agreed that the ruler had the discretion in appointing the menteri besar but stressed "it is not his personal discretion".

"The ruler has to pick someone who commands the confidence of the majority of the assembly," he said.

In the appointment of the Terengganu menteri besar, he said "the ruler appears to have appointed someone who may not have the support of the majority of the assembly".

"The assemblymen are the people who will support the menteri besar in his office, not Umno divisions or Umno leaders," Shaik Daud said.

Another senior lawyer and Bar Council member, Roger Tan, said the words "in his judgment" in the Eighth Schedule of the Federal Constitution were not to be taken in the literal sense.

"To say that it is an absolute discretion means a ruler can appoint anyone, including an independent, if he thinks that that person is likely to command the confidence of the majority of members of the state assembly.

"If so, this is contrary to the foundation of parliamentary democracy which practises constitutional monarchy. In a democracy, the ruler cannot frustrate the will of the people," he said.

Tan said the Constitution was, however, silent on the manner in which command of the confidence of the majority is determined.

"In the absence of an express constitutional provision, one always relies on conventions which have developed since independence, which is that the leader of the party with the majority number of seats is appointed, in this case the chairman of the Barisan Nasional at state level," he said.

'Ruler has right over choice of MB'

KUALA LUMPUR: Former Bar Council president Sulaiman Abdullah said the ruler of a state may act in his discretion to appoint a menteri besar.

He said Section 1(2)(a) in the Eighth Schedule of the Federal Constitution stipulated that "the ruler shall first appoint as menteri besar to preside over the executive council a member of the legislative assembly who in his judgment is likely to command the confidence of the majority of the members of the assembly".

"The ruler has the discretion and it is his judgment," the constitutional expert said.

"The constitutional theory is the legislative assembly is made up of individual members. The ruler has to look at these diverse members and decide who would command the confidence of the majority."

Commenting on the appointment of the menteri besar of Terengganu, Sulaiman argued that "the constitution requires him to exercise discretion according to his judgement and he has done so".

"If he has made the wrong choice, the test is the first meeting of the legislative assembly, when a vote of no-confidence could be passed," Sulaiman said.

If that happens, "the menteri besar either resigns or advises the ruler to dissolve the legislative assembly," he said.

He said the ruler also had the discretion to withhold consent for a request to dissolve the assembly.

Monday, March 24, 2008

Lawyer: Parking summons waiver is wrong

New Straits Times

KUALA LUMPUR: The Penang chief minister and Perak menteri besar are wrong to waive and cancel parking summonses issued in the two states prior to March 11 and March 18 respectively, according to senior lawyer and Bar Council member Roger Tan.

He said these summonses were issued pursuant to rules via local authority by-laws by virtue of Section 72 of the Road Transport Act 1987.

As such they were not issued under the Local Government Act 1976.

In this respect, neither the chief minister nor the menteri besar has any power to direct local authorities to waive any parking compounds.

Tan said: "This is not a local government matter but a traffic offence which comes under the jurisdiction of a federal law, namely the Road Transport Act.

"An offender could still be prosecuted (under federal law) if he does not settle his/her compounds within the stipulated time frame."

Tan said the law was silent on whether law-abiding motorists in both states could challenge the directive of the two state leaders in cancelling the outstanding summonses.

He said the move by the two state governments was not only unlawful under the Road Transport Act 1987 but went against the spirit of Article 8 of the Federal Constitution, that is, all persons are equal before the law.

Section 72 of the act states that a local authority has the power to utilise any land acquired through lawful means for the creation of parking spaces within its area of jurisdiction.

Other provisions of Section 72 include a charge that may be imposed on those who used such parking places and the times during which vehicles may be parked in a parking place.

A notice stating the substance of the order and the charge prescribed should be erected and maintained by the appropriate authority at or near the parking place or stand.

The law also states that it is unlawful for the driver of any vehicle or any person employed in connection therewith to ply for hire or accept passengers for hire or reward while any vehicle is within a parking place.

If any person is found guilty of any offence under this section, he or she is liable to a fine not exceeding RM300.

Under Section 120, it allows for the offences committed under Section 72 to be compounded.

Monday, March 17, 2008

Protecting the landowners

The Star
by Chelsea L.Y. Ng

HOLDING on to a piece of land title used to be the most secure way for landowners to state ownership of their properties.

The situation has however turned wobbly lately with the implementation of the computerised e-Tanah system.

Fraudulent land ownership transfers can be done at the click of the mouse. It can happen quickly and right under one’s nose.

Designed to streamline land transactions and ownership, the system was introduced late last year with a noble intention.

It aimed to cut transaction time in half, enable online comprehensive land database collection and make the application and registration of titles more efficient.

However, the new system which was gazetted through the National Land Code (Amendment) Act 2007 did not address the bigger problems of land fraud and the loophole in Section 340 of the National Land Code (NLC) 1965.

The loophole had resulted in the Federal Court’s landmark ruling in Adorna Properties Sdn Bhd v Boonsom Boonyanit in 2001.

The case revolves around a Thai woman, Boonsom Boonyanit, who lost two pieces of prime land in Tanjong Bungah, Penang, to a third party – Adorna Properties Sdn Bhd – after some unscrupulous parties forged her signature to sell and transfer the land.

The result of the case, which was heard right up to the Federal Court, could be said to be unfair to Boonsom. At the end of it, she lost everything.

The court held that Adorna Properties could rightly claim ownership over the two pieces of land worth millions of ringgit because it was an innocent buyer.

Since then some have felt that justice had not been administered according to the law stated in Section 340 of the NLC as the section does not contain any remedy for landowners.

The most senior Court of Appeal judge, Datuk Gopal Sri Ram, said on July 13 last year in Au Meng Nam & Anor v Ung Yak Chew & others that the controversial decision of the Adorna Properties case should not be followed because it was wrongly decided.

His view, however, immediately drew flak from then Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim who chided him for ignoring the ruling of a superior court merely on the grounds that someone felt the higher court had made a wrong decision.

This dilemma has got the Bar Council working on a memorandum which it submitted to the then Natural Resources and Environment Minister Datuk Seri Azmi Khalid on July 24, last year.

In the memorandum, the Bar Council proposed several amendments to be made to the relevant sections of the NLC, especially Sections 340(3) and (4) and 187B.

The move, however, did not bring about any change to the status quo as amendments to the NLC in December last year did not include Section 340.

It was only during a workshop on Thursday, organised by the Land and Mines Department to find ways to overcome the Adorna case, that a glimmer of light was seen at the end of the tunnel.

Land and Mines director-general Datuk Zoal Azha Yusof, whose department had organised the workshop, said the change was necessary to restore property owners’ rights.

“It is not fair to property owners to have their rights taken away,” he had said before.

The Bar Council’s Conveyancing Practice Committee chairman Roger Tan said the step was a positive move towards giving protection to land owners.

Apart from the Adorna Properties case, there were a serious number of fraudulent cases involving land in the country.

Statistics disclosed by police showed that 16 cases were recorded in 2001, 19 in 2002, 22 in 2003, 32 in 2004, 35 in 2005 and 40 in 2006.

The Consumers Association of Penang has cried foul over why hardly anyone had been prosecuted for the crimes.

The Government has also not been sitting idle. The National Resources and Environment Ministry has been correcting some of the teething problems in the e-Tanah system.

Among the measures noted for action since December were the use of digital signatures and security codes to increase security for land matters such as keeping data on transferring property in a special read-only database to prevent tampering.

Steps had also been taken to stop fraudsters from getting land titles by claiming that they had “lost” their land titles and trying to apply for new ones via their lawyers.

Now, landowners have to go personally to the Land Office to get replacement titles to ensure they are the legitimate owners.

These measures would definitely help to solve some of the teething problems but it is hoped that the amendment to Section 340 will provide the quantum leap for a more drastic change in the law for the benefit of bona fide landlords.

Sunday, March 16, 2008

What the law says

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.

This article was published in The Sunday Star on 16 March, 2008.

On shaky terrain

The results of the 12th general election show that the Barisan is not invincible after all. The people now have opened their eyes to know what people power can do.

IF people of Pakistan, Taiwan, Thailand and Australia can do it, so can we. If Dato’ Anwar can swing 30% of Malay votes in Malay heartland, Hindraf 80% of Indian and DAP 50% of Chinese votes, we may see a new government. Vote opposition...” That was the text message I received from a friend in the Opposition a few days before the general election.

Obviously, when one lives in the bastion of Barisan Nasional – Johor – one could only dismiss it with a wry smile.

But a few days before the election, signs became visible that the Opposition was gaining ground, judging from the huge turnouts in their ceramahs-turned-rallies and anti-establishment mood prevailing in cyberspace.

As the results turned out, an unprecedented swing took place from all the races in the country, particularly the urban and poor Malays.

The voting pattern has obviously emerged with Malays now not hesitating to vote for the DAP and the non-Malays, for PAS. Similarly, how many of the Malays were actually Indonesians-turned-Malaysians, no one knew either. Neither would one dare to surmise what the outcome would have been if more than four million Malay unregistered voters had cast their votes this time.

However, one thing is certain – the taboo of replacing the Barisan government has been broken. The people now have opened their eyes to know what people power can do and that the Barisan is not invincible after all.

While many this time had just wanted to register a protest vote, they as well as the Opposition probably did not expect that that would bring about a change in four state governments.

The other thing is also certain – fear no longer works now for Malaysians.

Whatever it is, the results obviously showed the populace’s unhappiness with the Barisan government. The Obama-change mood was prevalent as all that many voters wanted to tick on the ballot paper was any party, as long as it was not the Barisan.

It did not matter to them that:

the DAP is now working with PAS, and vice versa.

PKR candidates hold wholly divergent views on race and religion – with those fielded in the cities believing in freedom of religion under Article 11 and others in the Malay heartland who do not.

a DAP candidate has been disciplined by the Advocates & Solicitors Disciplinary Board; and

a PKR candidate in Penang has wrongly stated that he is a member of the Malaysian Bar Council when he is not.

The Barisan government, instead of portraying itself as compassionate, such as creating the environment for the release of Datuk Seri Anwar Ibrahim from prison and the setting up of the Royal Commission of Enquiry on the Lingam tape, launched what voters viewed as personal attacks against Anwar.

The Prime Minister’s caution that the non-Malays would not be represented in the government did not go down well with them who took it as a threat. Likewise, his statement that he did not want to form a government based on one race did not appeal to the urban Malays who felt that he was counting his chickens before they were hatched, similar to the Gerakan leadership announcing the three possible candidates for the Penang Chief Ministership before they had even been elected.

Also, we must not forget the last-minute about-turns by the Election Commission on the use of unstamped statutory declarations and indelible ink.

All said, this time round we must give credit to the Opposition for being able to ride on the wave of anger, not so much of change, against the Barisan. For example, the Opposition put up posters relating to the keris incident in Chinese majority areas and that of the Zakaria mansion in Malay kampungs in Penang.

As for the MCA, it only obtained 15 out of the 40 parliamentary seats it contested. Comparatively, among the Barisan component parties, the MCA’s top leadership is the least controversial. Moreover, the MCA’s amendment of its constitution allowing its President to hold office for not more than three terms went down well with the people – something no other political party or leader in the Barisan and Opposition had tried doing. Also, many MCA elected representatives served their constituencies well through their service centres.

While many had expected a reduction in the MCA seats this time round, none had expected such a dismal performance. What actually caused it?

Two plausible causes:

The urban population in Kuala Lumpur, Selangor and Penang where many MCA seats are situated wanted a strong Opposition; and

MCA’s association with Umno, Gerakan and MIC – a victim of one for all, all for one principle.

The mood in the cities is that the Barisan’s 2004 win of 90% of the seats had made them too powerful to the extent of becoming an elective dictatorship. Most were concerned about the independence of the judiciary and the rule of law, and the revelations in the Lingam Tape enquiry woke up many on such a need even though these revelations were more related to events that took place during the Mahathir administration.

So, when Malay intellectuals started appearing in DAP ceramahs advocating a need for that, this only strengthened the Chinese urbanites’ resolve. This was also egged on by the former prime minister, Tun Dr Mahathir, who still commands much respect among the Chinese community, when he too advocated for a strong voice against the Government.

The Malays and Chinese, too, were attracted to Anwar’s statement that the Opposition would work on a new economic agenda based on need rather than race as the NEP has only benefited the well-connected.

It follows that even if one had put the best MCA leader in the Klang Valley, he would still have lost. That was what happened to a good Umno minister like Datuk Sharizat Jalil, who lost to a political novice.

Secondly, the swing against Umno caused the MCA to lose in Chinese marginal seats which depended on Malay votes. The people of Penang’s dissatisfaction with Gerakan and wanting to change the Government also translated into votes against the MCA.

The MIC President’s refusal to step aside also caused 80% of Indian voters to turn against the Barisan in these marginal seats.

Further, the Opposition this time round parachuted well-known activists from civil rights groups who are intelligent and eloquent compared to the MCA whose hands are still tied as it had to first consider grassroots leaders who are more used to looking at local issues rather than larger issues like freedom and human rights.

Take the Bakri parliamentary seat, for example. The swing against Umno actually helped the DAP candidate when Malays too voted for the DAP. Umno lost the state seat Sungai Abong to PAS in the Bakri constituency.

This phenomenon of the Johor Malays voting against Umno appeared to also happen in the Johor/Malacca border areas as Umno also lost the Maharani seat to PAS while votes against Umno in the Muar parliamentary constituency also increased substantially.

Most of all, it must not be denied that the MCA’s constraints in speaking up openly on certain issues affecting the Chinese community also cost the MCA dearly.

The Chinese no doubt had wanted the MCA to stand up to Umno on the keris incident, its warning given to the MCA for saying we are a secular state and issues like freedom of religion, erection of places of worship and education, but the party was prevented by the spirit of Barisan rather than lack of courage. For the MCA to do that in the pre-election period when Umno was hugely dominant would mean they had to leave Barisan, which would be more detrimental to the interests of the Chinese.

It now appears that this closed-door and quiet diplomacy with Umno on sensitive issues started by past MCA leaderships is no longer an option. If in these four years, the DAP can prove to be an effective voice for the Chinese, the MCA may very well become irrelevant. Therefore, the last thing the party should face now is internal bickering. United, they can still dong shan zai qi (make a comeback).

All in all, it is time for the Barisan component parties to work even closer together. The spirit of cooperation should not just be there during election time.

One urgent area is for Barisan state governments to expedite land and building plan approvals for non-Muslims’ places of worship. Such approval often take a long time, if not years to come.
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And if the Barisan is not able to eradicate corruption and poverty regardless of race, it may just be wiped out by the Opposition in the next election if people living in the Opposition states are experiencing less corruption and better rights and quality of life.

In a way, it is good competition but only in the next election can one finally conclude whether a two-party system has emerged, that is, provided the Malay votes do not swing back to Umno.

All in all, politicians must be able to feel the pulse of the nation before the ground moves, let alone shake.

As an American writer, Simeon Strunsky, once wrote: “People who want to understand democracy should spend less time in the library with Aristotle and more time on the buses and in the subway.”

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.

Tuesday, March 4, 2008

Rule of law in Fiji in dire straits

LONDON: In a report published today, Dire Straits: A report on the rule of law in Fiji, the International Bar Association’s Human Rights Institute (IBAHRI) expresses concern over the state of the rule of law in that nation, which has steadily deteriorated since the December 2006 coup. The IBAHRI report highlights concerns about the interim military regime’s efforts to influence the judiciary, the legal profession and the media in Fiji. (Please click here to download the Report.)

The report is published following two separate attempts by a high-level IBAHRI-led delegation of senior jurists from Australia and Malaysia to visit Fiji subsequent to reports of threats to judicial independence and violent attacks on some lawyers. As the Fijian interim regime barred the delegation from entering Fiji, the investigation into the state of the rule of law was conducted via teleconference with a range of stakeholders based in Fiji and overseas. The delegation comprised:

• The Hon Justice Roslyn Atkinson, Supreme Court of Queensland, Australia;
• Mr Roger Tan, Advocate and Solicitor, Malaysia;
• Dr Loretta de Plevitz, Senior Lecturer, Faculty of Law, Queensland University of Technology, Australia;
• Ms Felicia Johnston, IBAHRI Programme Lawyer, United Kingdom; and
• Mr Daniel Woods, Rapporteur 

Of particular alarm is the case of Chief Justice Fatiaki who in January 2007, was removed from his office by representatives of the current interim regime and forced to take leave under duress. Subsequently charged with a range of misconduct offences, including allegations that he supported the 2000 coup, he was subjected to a delayed disciplinary process which was eventually dissolved as part of a ‘settlement’ between him and the regime in December 2008. At the same time he received a large payment from the interim regime and resigned from the position of Chief Justice.

If the allegations made against Chief Justice Fatiaki were true, then they warranted investigation and consideration by an independent tribunal. Alternatively, if the allegations were false, the interim regime's suspension of the Chief Justice was entirely without foundation, constituting a serious and unwarranted violation of the independence of the judiciary. There is no conclusion that can be drawn from the resolution of the suspension of the Chief Justice that does not have serious negative implications for the rule of law in Fiji.

Another concern is the conduct of judges who have been appointed or promoted following the December 2006 coup and who have heard cases that relate to the constitutionality of their own appointments. This breaches the law of recusal, which prohibits judges from presiding over a matter in which he or she holds an interest.

The 118 page report contains 31 recommendations (pages 93-97) which the IBAHRI calls on the interim regime and/or other relevant bodies to implement as a matter of urgency to restore the rule of law in Fiji.

Included in the recommendations are the following:

• That elections are held at the earliest opportunity in order to restore democracy to Fiji and legitimacy to all government actions.

• That the interim regime refrains from any interference with the independence of the judiciary and the legal profession.

• That the interim regime respects the independence of the legal profession in Fiji, and refrains from making inappropriate criticisms of the legal profession or individual lawyers.

• That the interim regime be transparent and accountable, and refrains from inhibiting access to Fiji of independent international delegations such as the IBAHRI delegation and the UN Special Rapporteur on the Independence of Judges and Lawyers.

• That all members of Fiji’s judiciary work together to overcome personal conflict and restore collegiality across the judiciary.

• That the Fiji Human Rights Commission acts independently and in compliance with its powers and mandates under the Fiji Constitution and law.

• That the interim government desists from using contempt or deportation proceedings to attempt to control information provided to the community by the media.

Justice Richard Goldstone, Co-Chair of the IBAHRI Council, stated: ‘This independent and impartial review reveals the extensive deterioration in the rule of law in Fiji. It is evident that measures implemented by the interim regime have negatively impacted on the judiciary, the legal profession, the Human Rights Commission and the media. Steps should be taken to restore democracy and a robust rule of law in Fiji.’