Upholding the rights of house buyers

Dream house?: A young boy admiring the scale model of a housing project at a property fair in Penang last year. – Filepic

The Sunday Star

by Roger Tan

ON Tuesday , the Federal Court ruled that the housing controller has no power to waive or modify provisions of the contracts of sale as prescribed by regulations 11(1) and (2) of the Housing Development (Control and Licensing) Regulations, 1989 (1989 Regulations).

The 1989 Regulations were made by the housing minister pursuant to section 24 of the parent Act, namely the Housing Development (Control and Licensing) Act, 1966 (Act 118).

These contracts of sale are better known in the housing industry as Schedules G, H, I and J, depending on the types of housing accommodation being developed.

The prescribed contracts of sale include provisions stipulating the time for delivery of vacant possession and they have to be strictly followed; failing which the defaulting party can be liable upon conviction to a fine not exceeding RM50,000 or to a jail term not exceeding five years or to both. Further, any person who aids, abets or counsels the commission of the offence will face similar punishment upon conviction.

Hence, regulation 11(3) which came into force on April 1, 1989 and remained unamended since, allowed the controller to waive or modify the provisions of the contract of sale if he was satisfied that there were special circumstances or hardship or necessity; compliance of which with any of the said provisions was impracticable or unnecessary.

Regulation 12 then provides for any person aggrieved by the controller’s decision to appeal to the minister whose decision is final and shall not be questioned in any court.

One common modification sought by the developers to the contract of sale is to apply, before the expiry of the stipulated date fixed for handing over of vacant possession, for an extension of time (EOT) so that the developers will not be sued for late delivery and face a claim for liquidated damages (LAD) by the house buyers.

On May 14, five questions were posed to the five-member panel of the apex court namely, Chief Justice Tengku Maimun Tuan Mat, Justice Azahar Mohamed, Justice Alizatul Khair Osman Khairuddin (who has since retired), Justice Idrus Harun and Justice Nallini Pathmanathan. In delivering the unanimous decision of the apex court, Justice Tengku Maimun ruled that:

> the controller has no power to waive or modify any provision in the contract of sale;

> section 24 of Act 118 does not confer power on the minister to make regulations for the purpose of delegating his power to waive or modify the contract of sale to the controller; and

> regulation 11(3) is ultra vires (beyond the powers of) Act 118.

The apex court, however, declined to answer the following two questions posed by the developer, BHL Construction Sdn Bhd because the above ruling effectively meant that there was no decision by the minister:-

> whether the letter granting an extension of time after an appeal pursuant to regulation 12 must be signed personally by the minister and whether the minister could delegate his duties (signing of the letter granting the extension of time) to an officer in his ministry; and

> whether the minister having taken into consideration the interest of the purchaser is obliged to afford the purchasers a hearing prior to the minister granting the extension of time albeit there is no such provision or requirement in Act 118 or the 1989 Regulations.

Working together for a cleaner world

The Sunday Star 
by Roger Tan

Not wasting time: Pushing for sustainable waste management, the writer (centre) standing beside Ho, who is leading the organising committee of ISWA 2018.

Malaysians still have a lot to learn about solid waste management.

FROM Oct 22 to Oct 24, an important world event, which took place at Kuala Lumpur Convention Centre, almost went unnoticed by the general public. 

The event was the congregation of the best in the waste management industry at the World Congress of the International Solid Waste Association (ISWA). Some 1700 over participants from 64 countries took part. 

Four years ago, the Waste Management Association of Malaysia (WMAM), the national member of the ISWA, led by its Chairman, Ho De Leong, had gone to great lengths to bid successfully for this most important annual event of ISWA to be held here. 

Regrettably, when it came to the big day, the Housing and Local Government Minister, Zuraida Kamaruddin was not able to officiate it due to her parliamentary obligations. She was represented by her deputy, Datuk Raja Kamarul Bahrin Shah Raja Ahmad. However, the Secretary General of the ministry, Datuk Seri Mohammad Mentek, was most supportive by making an effort to be present at several sessions. The Secretary General of the Water, Land and Natural Resources Ministry Datuk Dr Tan Yew Chong was equally supportive. And what is most gratifying to note is that 99% of the participants who were surveyed said they were most satisfied with our beautiful Malaysia being the destination for this year’s world congress. 

But then again, what is most alarming is Malaysians are generally ignorant about solid waste management. Most will immediately ask what is actually “solid waste”. In simple terms, it is any unwanted material or substance which is required to be disposed of, but does not include sewage, hazardous and radioactive wastes. The most common types are household and commercial solid wastes, that is, solid waste generated from a household or any commercial activity. 

Malaysians too have little knowledge about or regard for generation, collection, transportation, recovery, treatment and disposal of solid waste. This explains why our drains and rivers are always clogged up by solid waste, and every day workers have to clear the litter trapped in floating booms installed in rivers throughout the country in order to prevent and minimise pollution and flood. 

The situation is exacerbated by us generating more waste over the years. Three years ago, Malaysians generated about 19,000 tonnes of solid waste daily (TPD). Today, the figure has reached two-fold, 38,000 TPD. Out of this amount, waste separation and recycling rates only account for 24%. The remaining 76% goes to 160 landfills, of which about 15 of them are sanitary landfills. A sanitary landfill, unlike dumpsites, is a properly engineered landfill where solid waste is safely isolated from the environment with lining materials and designs to prevent leakage of leachate and contamination of groundwater and surrounding soils as well as making it possible for landfill gas to be captured and converted into a renewable energy resource. So, in developed countries, it is quite a common sight for golf courses and public parks to be built and landscaped on sanitary landfills that have been closed. 

Custodial deaths a national shame

Justice served: Kugan’s mother Indra Nalathamby leaving the court. Kugan’s family was awarded RM751,709 in damages and another RM50,000 in costs.

The Sunday Star

Legally Speaking by Roger Tan

Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty.

ON June 28, Justice Datuk V.T. Singham indeed retired with a bang! Two days before his retirement, he awarded RM751,709 in damages and another RM50,000 in costs to the family of Kugan Ananthan who died while in police custody on Jan 20, 2009. 

Singham held that the then Selangor police chief Tan Sri Khalid Abu Bakar, now the Inspector-General of Police, had committed misfeasance in public office. 

In delivering his judgment, he also reportedly urged the government to urgently set up the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the 2005 Royal Commission to enhance the operation and management of the Royal Malaysia Police (RCI).

However, at the time of writing this piece, his written judgment is still not available. In any event, the government and the IGP are expected to appeal against his decision.

This reminds me of the case of Mohd Anuar Sharip who vomited blood, collapsed and died in a police cell on Aug 19, 1999. In June, 2010, Justice Lee Swee Seng awarded about RM1.6mil in damages to his widow, Suzana Mohamad Aris. However, Lee’s decision was subsequently reversed by the Court of Appeal. In October 2010, Suzana failed to obtain leave from the Federal Court to appeal against the decision of the Court of Appeal. 

But it is worthy to reiterate Lee’s words when he handed down his judgment: “Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights (sic) of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious … The safest place to be in should not by default be turned into the most dangerous place to be taken to.”

No access to information in three categories

The Star

SHAH ALAM: The public will not be allowed access to three categories of information despite the Freedom of Information Enactment being passed at the state assembly.

Under Section 14, information classified as confidential and secret under the Official Secrets Act (OSA) is exempted from the enactment.

The second exemption refers to trade secrets obtained from a third party and to communicate it would constitute an actionable breach of confidence. The third exemption applies to information, if disclosed, causes serious prejudice to the effective formulation or development of state government policy.

Including sub-clauses, the exemptions in the enactment passed yesterday had been reduced from 11 to five. There are, however, three scenarios where the exemptions can be overruled and information could be made available under Section 15.

Section 15 states that regardless of Section 14, a department must grant access to the applicant if the information's disclosure is of public interest.

Rising to the water challenge

Meeting demand: Work on the Pahang-Selangor Interstate Raw Water Transfer Project has started.

It is everyone’s responsibility to ensure that we have adequate and affordable safe and clean drinking water for many years to come.

THIS Tuesday, March 22, is the 18th International World Water Day. This year’s theme, “Water for cities – responding to the urban challenge”, could not have been more timely in the context of how Selangor, Kuala Lumpur and Putrajaya will come to grips with the challenge of urban water management due to increasing demand for safe and clean drinking water as a result of rapid growth in urban migration and population.

The Federal Government foresees that the residents of Selangor, Kuala Lumpur and Putrajaya will experience water supply shortage by 2014 unless the increase in demand can be effectively met.

Many can still remember the water crisis that hit Kuala Lumpur in 1998 when water rationing lasted for several months until shortly before the Commonwealth Games were held.

To avoid a repeat of such a crisis, the states of Pahang and Selangor signed a contract in November 2007 for Pahang to supply raw water to Selangor at the rate of 10 sen per 1,000 litres of water, and such rate would be reviewed every five years. In return, Pahang would receive an annual income of approximately RM85mil.

This RM9bil project, known as Pahang-Selangor Interstate Raw Water Transfer Project, comprises the construction of a 45km tunnel to transport some 1.89 billion litres of raw water daily to Selangor; Kelau Dam; Semantan Pumping Station; and Langat 2 Treatment Plant and its distribution system. With Japanese funding, the tunnel construction commenced on June 1, 2009 and is expected to be completed by May 2014.

However, to avert a possible water crisis, the Langat 2 Treatment Plant and its distribution system (Langat 2 Project) have to be completed in time or simultaneously with the completion of the water tunnel. When fully completed, the entire system is capable of producing more than 2,000 million litres of treated water a day (MLD), sufficient to help meet the projected water demand of about 4,900 MLD by 2014 in Selangor, Kuala Lumpur and Putrajaya from the current demand of about 4,200 MLD.

However, the Selangor government has decided to tie together the state water restructuring issue involving four concessionaires – Syarikat Bekalan Air Selangor Sdn Bhd (Syabas), Puncak Niaga (M) Sdn Bhd (PNSB), Syarikat Pengeluar Air Sungai Selangor Bhd (Splash) and Konsortium Abass Sdn Bhd – and the commencement of Langat 2 Project. As a result, the land acquisition process has been put on hold and the relevant local authorities have also been directed to withhold planning permission for the development of the Langat 2 Project.

Bar Council seeks royal panel on Bukit Antarabangsa tragedy

The Star

PETALING JAYA: The Malaysian Bar Council has called for the immediate setting up of a Royal Com­mission of Inquiry into the Dec 6 Bukit Antarabangsa tragedy.

The council’s task force, in its report on Bukit Antarabangsa, also strongly called for the removal of the immunity of local authorities and officers under Section 95 of the Street, Drainage and Building Act.

The council wanted appropriate action to be taken against the parties responsible for the Bukit Antarabangsa tragedy which claimed four lives and caused substantial injury and destruction to property.

It said the relevant authorities must also sanction the immediate discontinuation of all ongoing hillside development projects not meeting the minimum requirements of safety, or which have not complied with the applicable laws, regulations and guidelines.

“As a precautionary measure, all hillside development on gradients exceeding 25 degrees should be banned until proper laws are passed,” said the report.

The task force was appointed by the Bar Council in December to find solutions to prevent or minimise future landslides in or around hill­slope developments.

The six-member task force was headed by chairman Roger Tan.

The council also called for the relevant authorities to conduct an immediate safety review of all existing hillside development at the cost of the developers.

In a press release, council president Datuk S. Ambiga said it was deeply concerned with the recent announcement by Works Minister Datuk Seri Mohd Zin Mohamed that there would not be a blanket ban on hillside development.

“It is particularly alarming that this statement has been issued at a time when the many controversies surrounding hillside development still remain unresolved, without proper explanation by the authorities,” she said.

“It is also understood that the Federal Government’s Commission Investigation report into the cause of the landslide at Bukit Antarabangsa which has been completed, has yet to be made public.”

On the task force’s report, Ambiga said it identified the key likely contributory causes of landslide tragedies including the lack of competent expertise in design, construction, site supervision and maintenance and communication during the construction process.

The vandals must be kept out of our streets

I WAS driving past the Pelangi Utama Apartments in Petaling Jaya two weeks ago when something caught my eye.

It was not this newly-completed high-density condominium project but rather a row of young trees along Jalan Masjid PJU 6A opposite the apartments.

Nailed to these trees were posters and other hoardings advertising various goods and services ranging from food catering, sale and leasing of the apartment units, and plumbing services to moneylending.

I also noticed that some of these trees had been damaged with the bark ripped out and long metal nails protruding.

Fortunately, these trees were not the trees in The Lord of The Rings; otherwise they would come alive and exact vengeance on us humans.

Imagine also if the posters were not securely fastened to the trees. Strong winds could turn them into flying objects, posing a danger to road-users.

Sadly, this is not at all an uncommon sight throughout the country with lamp posts, telephone booths and Tenaga Nasional circuit boxes being three other favourite structures for such illegal bunting.

Hence, one may ask where the enforcement is when telephone numbers of these illegal advertisers are so prominently displayed on the posters.

In this instance, the question has to be posed to the Majlis Bandaraya Petaling Jaya because advertisements are regulated by by-laws made by local authorities pursuant to section 102(c) of the Local Government Act 1976 (Act 171).

Unless the penalties are expressly provided for in the relevant by-laws, section 119 of Act 171 provides that any person who is guilty of any offence against any by-law shall on conviction be liable to a fine not exceeding RM2,000 or to a term of imprisonment not exceeding one year, or both.

However, more often than not, these offences are compoundable, and the culprits walk away by just paying a small compound fine.

To my mind, this is, in fact, an act of vandalism not dissimilar to acts like damaging and destroying property such as public phones and cars, and drawing graffiti on the walls and doors of toilets and lifts, both public and private.

In fact, a man was hauled up before a district court in Singapore last Thursday for scribbling words on a display wall outside Parliament House.

Koh Chan Meng, 47, was charged with vandalising the wall twice when he allegedly wrote on the wall, considered public property, the words "Hi Harry Lee I love you" and "Go sue me Lee Kuan Yew Go Gavin Son".

Harry Lee is Singapore's Minister Mentor Lee Kuan Yew.

If convicted, Koh could face mandatory whipping of at least three strokes of the cane on each charge in addition to a fine of up to S$2,000 (RM4,700) or imprisonment for up to three years.

Perhaps many would also not forget the case of an American teenager, Michael Fay, who was given four strokes of the cane in Singapore for car vandalism in 1994.

Both Fay and Koh were charged under Singapore's Vandalism Act, 1966.

The 1966 Act defines an "act of vandalism" as:

(a) in the case of public property, without the written authority of an authorised officer or representative of the government or statutory body or of any foreign government or of any armed force lawfully present in Singapore or in the case of private property, without the written consent of the owner or occupier:

(i) writing, drawing, painting, marking or inscribing on any public property or private property any word, slogan, caricature, drawing, mark, symbol or other thing;

(ii) affixing, posting up or displaying on any public property or private property any poster, placard, advertisement, bill, notice, paper or other document; or

(iii) hanging, suspending, hoisting, affixing or displaying on or from any public property or private property any flag, bunting, standard, banner or the like with any word, slogan, caricature, drawing, mark or symbol; or

(b) stealing, destroying or damaging any public property.

Section 3 of the 1966 Act imposes not only a fine not exceeding S$2,000 or imprisonment for a term not exceeding three years, but mandatory whipping with not less than three strokes and not more than eight strokes of the cane.

However, whipping will not be imposed on a first conviction in respect of any act falling within paragraph (a) unless the act involved is an offence under paragraph (a)(i) above where the writing, drawing, mark or inscription is done with an indelible substance.

The above is indeed a comprehensive definition of an act of vandalism, and it is one legislation which has probably made Singapore such a clean country today.

However, in Malaysia, we do not have specific legislation to deal with vandalism.

Here, any act of damaging or destroying of property is considered as committing mischief under our Penal Code.

Section 426 of the Penal Code provides that anyone who commits mischief shall be punished with imprisonment for a term which may extend to three months, or with a fine, or with both.

If the mischief causes loss or damage to the amount of RM25 or upwards, section 427 then increases the punishment to a term of imprisonment of up to two years.

Hence, the local authority by-laws and current Penal Code provisions are not adequate to come to grips with this anti-social behaviour which is fast becoming a menace.

The time has come for Parliament to introduce a specific legislation to combat vandalism so that our trees can be saved; our public amenities can be protected from damage and destruction and toilets and lifts in both public and private buildings can be kept clean.

Further, the costs expended in undoing acts of vandalism can be better chanelled to improving and upgrading our public amenities.

The new legislation can be modelled upon Singapore's Vandalism Act.

As whipping can be considered as too draconian or cruel a penalty, convicted vandals can instead be required to do mandatory community service in addition to a fine or a jail term.

Whatever it is, if we want a clean Malaysia, then something must be done quickly which can pose as a strong deterrent to acts of vandalism in this country.

Published in the New Sunday Times, 18 January 2009

Perak sticks by promise to waive fines

New Straits Times

IPOH: Despite criticisms from certain quarters, the state government will keep its promise to cancel compound notices issued by the local councils for parking offences and illegal trading.

Senior state executive councillor Ngeh Koo Ham told the New Straits Times that official letters would be sent to all 15 local government heads in the state advising them to implement the policy announcement issued by Menteri Besar Mohammad Nizar Jamaluddin.

On March 17, a day after he was sworn into office, Nizar declared that all notices of compound issued by local councils would be cancelled.

Ngeh, who is also national DAP legal bureau head, said the letters would be sent soon to the mayor here and the presidents of the 14 other local councils.

"The letters will be an advisory to follow up with the announcement of the menteri besar.

"We (the state government) intend to fulfil that promise," he said here yesterday.

Several quarters, including non-governmental organisations such as Ipoh City Watch and Ipoh Ratepayers and Taxpayers Association, academics like Penang-based Dr Goh Ban Lee and lawyers like Gurbachan Singh and Roger Tan have criticised Nizar's announcement as being out of the ordinary and in contravention of established laws.

Ngeh brushed aside the criticisms.

He said while the state government recognised that local councils were another tier of government, they were subject to the direction of the state government.

He said by virtue of legal provision in the Federal Constitution, which states that local governments came under the purview of the state government, the instruction to the local councils to cancel the notices to compound could not be questioned.

He pointed to Federal Constitution's Schedule 9, List II (State List) item 4(a) which expressly states "the state government has jurisdiction over the local government" as the underlying provision by which the state government could direct the local councils to act according to its wishes.

"It is important to look at the Federal Constitution instead of taking a narrow view by looking only at the Local Government Act 1976.

"The Federal Constitution is the supreme law of the land."

Summons waiver impinges councils' autonomy

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 fact, an offence under Section 72(7) of Act 333 may also be compounded by police officers under the Road Transport (Compounding Offences) Rules 2003. Section 122 of Act 333 also requires the particulars of offences compounded under Section 120 to be sent to the director-general for road transport.

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.

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.

'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.”

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.

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.

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.

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.”

Do laws grind the poor, and rich men rule the law?

I have written before that “be you never so high, the law is above you” (NST, Jan 29).

So it is always dispiriting to find out whenever this fundamental principle of the rule of law is disregarded by the influential, rich, well-connected and the powerful with impunity.

The topical case before us is the two councillors of the Klang Municipal Council (MPK) who were reported to be erecting their mansions without any approval.

It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which has been described as the maximum fine permitted under the law.

Zakaria, who is also the Port Klang state assemblyman, was reported to have blamed his former architect for not first getting the necessary approval.

It was also reported that Zakaria also owns a restaurant in Port Klang which had recently been found to be unlicensed, and that council enforcement officers actually demolished a rival restaurant for minor infractions but took no action instead against Zakaria’s unlicensed restaurant.

Meanwhile, the other MPK councillor, Mazlynoor Abdul Latiff, openly admitted that he was also building his mansion at Kampung Raja Uda in Jalan Lengkungan without any approval.

He even had the audacity to claim, as reported, that other councillors had also built their mansions, much bigger ones, within the same area without building plans.

Mazlynoor revealed that he had, in fact, submitted a plan to MPK’s planning department in 2005, but it was returned to him as it did not conform to the sewerage infrastructure.

He added that as it involved costs, he went ahead with the construction and that he would submit the plans after Hari Raya.

So the fact remains that the development and construction of his mansion took place without any approval.

At the same time, the Menteri Besar of Selangor Datuk Seri Dr Mohd Khir Toyo had also referred the matter involving the appointments of Zakaria, his son Zainuri and his daughter-in-law Roselinda Abdul Jamil as Klang councillors to the Selangor Umno liaison committee.

This whole affair about the MPK councillors is now not only becoming a farce, but has raised three very troubling issues:

• Is the RM24,000 fine the only punishment MPK can mete out to Zakaria?

• Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

• Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

In my opinion, a fine of RM24,000 is not the only penalty which can be imposed against Zakaria for contravening the laws especially when it was also reported that no planning permission had been given.

It was therefore surprising that MPK did not take any action against Zakaria either under the Street, Drainage and Building Act 1974 (“Act 133”) or the Town and Country Planning Act 1976 (“Act 172”).

It appeared that, instead, MPK decided to fine Zakaria under paragraph 17 of the First Schedule of the Uniform Building By-Laws 1984, a subsidiary legislation made under Act 133 which reads:

“In all cases where work has been commenced before plans have been approved or a permit obtained a fee equal to ten times that specified in the relevant preceding paragraph may be charged.

“The payment of this enhanced fee will not exempt any person from being prosecuted by the local authority should it decide to do so.”

The paragraph says that the payment does not prevent MPK from prosecuting Zakaria.

The law governing the development of land and erection of buildings is contained in Acts 133 and 172.

Generally, before anyone develops his land, he is required to obtain a planning permission under Act 172.

The planning permission is usually valid for a period of 12 months during which time the landowner is required to fulfil the conditions attached to the approval, unless it is extended.

Having obtained the planning permission does not entitle the landowner to commence construction of his building. He is also required to obtain approval to the building plans and specifications under Act 133.

Section 26(1) of Act 172 provides that any person who commences, undertakes or carries out any development or permits the same to be done without any planning permission commits an offence and is liable, on conviction, to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two years or both.

In the case of a continuing offence, a further fine may extend to RM5,000 for each day during which the offence continues after the first conviction for the offence.

Sub-section (2) also states that “unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act.”

Act 172 also allows the local authority which is the local planning authority to require the land to be restored as far as possible to the condition it was in before the development was commenced.

Section 72 of Act 133 also provides that where the local authority is satisfied that a building has been erected or is in the course of erection without the building plans and specifications being approved by the local authority, the local authority may require the landowner to do any one or more of the following acts:

(a) to stop work;

(b) to demolish such building within such time as the local authority may specify; and

(c) to take steps as may be ordered by the local authority.

It follows that MPK obviously owes the public an explanation as to why it has not invoked the above-mentioned sections of Acts 133 and 172.

I am sure the public would like to know whether a stop work order or demolition order has been issued; and what steps MPK has ordered these two councillors to take.

Without a satisfactory explanation, it will not stop the public from asking whether MPK is practising double standards when it comes to enforcing these two pieces of legislation against a public perception that local authorities have no qualms whatsoever to tear down buildings and extensions of ordinary folk and even places of worship if they have been erected without prior building plan approval.

Is this another case of what Oliver Goldsmith would describe: “Laws grind the poor, and rich men rule the law”?

Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

Mazlynoor’s response is rather disturbing. This law enforcer seemed to be saying that there is nothing wrong with what he did when there are so many other VIPs also doing it.

Such a response is indeed unbecoming of a councillor who has been entrusted to enforce the very same law which he showed no regret whatsoever to have breached.

There just cannot be one law for the rich and connected, and another for the poor and unconnected.

Everyone is entitled to be treated equally in his dealings with the public authorities.

If this persists, this case will remove any deterrence against anyone who disobeys the law.

This whole affair now reminds me of the words of Shamsul Hoque, the director of Legal Education and Training Institute of the Bangladeshi Bar Council who once described law as a scarecrow. This was what he wrote in 2003:

“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field. But some birds strong and greedy do not get frightened. They are often found not only to come near the scarecrow, but also to perch on its arms and head to rest after eating the grain to their hearts’ content. Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.

“A law is made with the express intent to help people in getting justice through a legal system, thereby aiming to achieve the ‘greatest happiness of the greatest number’. But very often the law fails to serve this purpose.

The innocent, simple, illiterate and the poor cannot access legal procedure because it is highly expensive, complicated and time-consuming to them.

So they look upon law from a distance as a frightening scarecrow.

“On the other hand, some people in society like those strong, greedy birds, tame, twist or tarnish a law and use it for their own benefits. Some others follow suit and seize the opportunity, too.

Thus the law is made into a no-more frightening, rather a tattered scarecrow.

“It is this second group that is mainly responsible for making many laws ineffective. Not only that, they make law an accomplice in fulfilling their greed for power and possessions.”

Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

A councillor is indeed a very important person. He forms part of the local authority which exercises its powers and performs its duties under the Local Government Act 1976 (“Act 171”). As the local authority is also the approving authority for planning permission under Act 172 and building plans and specifications under Act 133, he is therefore a member of the decision making body.

In discharging his duties, he is well protected by law. Section 125 of Act 171 and section 95 of Act 133 grant him general immunity against any personal action, liability, claim or demand whatsoever.

However, it is the state government and not the federal government, that is, the Ministry of Housing and Local Government, that has supervisory control over the local authority.

Under Act 171, the federal minister is only required to be consulted by the state authority under eight situations:

(1) declare any area in such state to be a local authority area;

(2) assign a name to such local authority area;

(3) define the boundaries of such local authority area;

(4) determine the status of the local authority for such local authority area and such status shall be that of a municipal council or a district council;

(5) change the name of any local authority area;

(6) change the status of a local authority area;

(7) alter the boundaries of any local authority area; and

(8) merge two or more local authorities into one local authority.

But the main reason why state governments and local authorities do take into account any advice given by the federal government is simply because of financial consideration as financial grants and loans are provided by the federal government to the local authorities.

Also, the federal government and the state governments form the National Council for Local Government set up under Article 95A of the Federal Constitution and which is chaired by a federal minister.

It follows that it is the state authority, which is essentially the state executive council, that has control over local authorities, and the Menetri Besar, being its head, actually calls the shots.

Section 9 of Act 171 provides that the state authority may from time to time give the local authority policy directions of a general character relating to matters which appear to the state authority to affect the interests of the local authority area, and the local authority has to give effect to all such directions as soon as possible.

Section 10(7) of Act 171 then provides that if the mayor or president of the local authority does not agree with the other councillors as to the exercise of any of his powers or of the powers of the local authority, he shall refer the matter to the Menteri Besar whose decision shall be final and binding on the local authority.

As regards the appointment of the the Zakaria family members as MPK councillors, section 10(2) of Act 171 provides that councillors of the local authority shall be appointed from among persons who are ordinarily resident in the local authority area and who in the opinion of the state authority:

(a) have wide experience in local government affairs or;

(b) who have achieved distinction in any profession, commerce or industry; or

(c) are otherwise capable of representing the interests of their communities in the local authority area.

Therefore, even though councillors are political appointees, the state authority must adhere to these criteria when appointing them.

The interests of the local community is of paramount importance and the most important criterion is whether the appointees are capable of representing the interests of the local community.

The government must be mindful of this; otherwise there is nothing to prevent a ratepayer later from challenging any appointment.

It follows that Dr Khir should have perhaps first referred the matter to the state executive council instead of his party.

While politically this may make sense as councillors are usually local political leaders who wield considerable grassroots support, legally it is the state executive council which should decide who should be appointed and re-appointed.

However, so long as we continue to read about these unhealthy antics of local councillors, the calls of bringing back local elections will grow louder. But is this a solution?

It is said that while elections may bring about transparency and accountability at local politics, a local authority controlled by the opposition may find it difficult to run its local authority area as many local authorities cannot survive without financial grants from the covernment as revenue collected from the local assessments is just not enough.

I am of the view that the time has come for the government to look again at Act 171 to address the many weaknesses in the Act so that the system of local government can meet up with the ever-demanding needs and expectations of our citizenry today.

The last time a Royal Commission was set up to study the system of local government was in 1965 which produced the Athi Nahappan Report in 1969 that led to Act 171.

Perhaps, as a start, section 10(2) can be amended to require the state authority to consult either the minister or the National Council for Local Government in the appointment and re-appointment of local councillors.