Local gov’t polls can be held, say legal experts advising Penang gov’t

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It is legally possible to hold local government elections, a team of legal experts advising the Penang state government has found, writes Prof Francis Loh. The Penang government will now decide whether to seek a court declaration on the issue.   

At a press conference called by the Penang Chief Minister YAB Lim Guan Eng on 30 April, the CM announced that a team of legal experts comprising Tommy Thomas, Malik Imtiaz and Yeoh Yang Poh (former Bar Council chairman, who also led the team) had looked into the possibility of conducting local govt elections for Penang.

Each of the three had prepared his own legal opinion. Except for minor differences in emphases, they came to the common conclusion that it was legally possible to conduct local government elections. They offered a novel perspective into the legal conundrum.

Yeoh was present at the press conference. He clarified that others who were looking into this problem had highlighted previously that the sticky point was the conflict between the Local Government Act (LGA) 1976 S 15(1) which prohibited Local Government elections to be held and the Local Government Elections Act (LGEA) 1960 which provides for elections. Those who maintained that Local Government elections could not be held had based their argument on thae basis of LGA 1976 S. 15(1) which stated that ‘…all provisions relating to local government elections shall cease to have force and effect’. In other words, If LGA S.15(1) is valid and can’t be avoided, then Local Government elections as provided in LGEA 1960 are prohibited.

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On the other hand, those who argued that Local Government elections could be held did not challenge the validity of S. 15(1). Rather they argued that Local Government elections could still be held because a State Government can ‘opt out’ of it, by virtue of S. 1(4) of the LGA 1976: ‘The State Authority may [notwithstanding that it had earlier opted for the Act or part thereof] by notification in the Gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any bylaws’. After ‘opting out’ the LGEA 1960 can then be invoked to carry out Local Government elections.

However, Yeoh, Thomas and Imtiaz adopt a different two-prong approach in their argument.

The first prong of their argument is based on the fact that the LG Election Act 1960 was revised in 1991 pursuant to the Revision of Laws Act 1968, and it became Act 473 as from 16 Sept 1991. What is the effect of this revision?

Here the three lawyers cite S 10(2) of the Revision of Laws Act which states: ‘On and after the date from which a revised law comes into force, such revised law shall be deemed to be and shall be without any question whatsoever in all courts and for all purposes whatsoever the sole and only proper law in respect of matters included therein and in office on that date’.  They conclude that the LG Election Act amended 1991 prevails, and the LGA 1976 S 15(1) falls.

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Additionally S 15(1) is void because it is unconstitutional. For Article 113(4) of Constitution states: Federal or State law may authorise the Election Commission to conduct elections other than those referred to in Clause (1) [i.e. to conduct local government elections]’. In other words, holding Local Government elections is constitutionally permissible, though not mandatory.  At any rate it cannot be prohibited by any law, except by way of amendment to the Constitution itself.

The second prong takes up the argument that others had previously made about ‘opting out’. In this regard, the Election Commission’s recent response to the Penang State Government that elections cannot be held because it requires consent of the National Council for Local Government (NCLG)’s consent is viewed by Yeoh as “an absurd argument” – for the NCLG is just an administrative body. It cannot formulate a policy that goes against the Constitution. Or, put another way, the NCLG cannot make a policy that prohibits Local Government elections when the Constitution [Article 113(4)] allows for those local elections!

The Penang State Exco is expected to make a decision on this matter in its next meeting. It will decide whether to seek declarations directly from the Federal Court to declare S.15(1) of the LGA 1976 void, and to declare LGEA as the sole and proper law on Local Government elections. This is the first prong. Alternatively, they could seek declaration on the Second prong of the argument.

Prof Francis Loh, Secretary of Aliran, was present at the press conference.

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