Tuesday, May 22 2012
Paving the way for local government reforms
Monday, 13 July 2009 11:15

LOCAL GOVERNMENT matters have been a source of a lot of dissatisfaction because of the rather opaque and relatively autonomous ways local authorities can operate. It has given rise to mismanagement and issues of accountabilty.

As part of iGeorgeTown’s ongoing effort to provide a broad information platform, we have initiated a series where reports from the working groups that make up the Penang Forum are published as opinion pieces on the website.

We carry here the working group report on local government. The Memorandum was prepared by Dr Francis Loh on behalf of the Group comprising: Dr Goh Ban Lee, Dr Choong Sim Poey, Andre Loh, Ch’ng Teng Liang, Shalehudin Hj Hashim, Teh Tee Han and Lim Kah Cheng. Click through headers to get to individual sections.

PENANG FORUM REPORT OF WORKING GROUPS: LOCAL GOVERNMENT

INTRODUCTION

Malaysia practises a federal system of government which shares power and resources between the federal and the state levels of government. In fact, there is a third tier of government, the local authority, that generally falls under the ambit of the state government.

By adopting a three-tiered system of government, it is hoped that the work of government can be more efficiently distributed and the interests of the rakyat better served. Specifically, the maintenance of public facilities including drains, public toilets and open spaces; the collection, transportation and disposal of refuse; and the regulation of trades and other commercial activities, and especially of land and building development - all fall under the purview of local government.

In the past, the MPPP even provided services like electricity, water, fire brigade services, maternity and children clinics, the Penang Hill Railway, bus services, and low cost housing. Many of these services have been taken over by the state or the federal government, and since the 1990s, increasingly privatised.

During the 1950s until the mid-1960s, local government elections were also regularly conducted. Elections were held to elect George Town’s Municipal Councillors for the first time in 1951. This was followed by elections for the Kuala Lumpur Town Council in 1952, and subsequently for Ipoh, Malacca and the other major towns. It was only in 1955 that Legislative Council elections were conducted for the federation as a whole.

However, elections to local governments were suspended in 1965 following the outbreak of hostilities between Malaysia and Indonesia. Thereafter, local government presidents and councillors were appointed while a Royal Commission of Enquiry (headed by Senator Athi Nahappan) was established to look into the Workings of the Local Authorities.

Although in 1968 the Royal Commission subsequently recommended that local government elections be reinstituted, the Federal Government decided not to adopt the recommendations of its own Royal Commission on the pretext that the local authorities would be run more efficiently if supervised more directly by the state governments.

Consequently, when new local government laws and reforms were introduced in the early 1970s, local government elections were abolished altogether.  Between 1976 to 2008, the councillors of local authorities have been selected from among the party faithful of the ruling Barisan Nasional coalition.

In this regard, the local authorities have largely played the role of extensions of the various BN state governments, charged with implementing BN policies, especially the NEP, at the local level. It is fair to say that the local authorities have not particularly distinguished themselves as purveyors of the rakyat’s interests.
  
Rather, especially over the past decade, there have been numerous complaints about the mismanagement of local authorities in Malaysia. Some of these complaints have been highlighted in the press, particularly in theSun.

Such mismanagement has occurred in spite of the existence of a comprehensive sets of laws, including the Local Government Act (LGA) 1976, the Town and Country Planning Act (TCPA) 1976, the Roads, Drains and Building Act (1974), and various sets of by-laws and regulations (for example, Uniform Building By Laws, 1984) passed by the local councils.
 
Currently there appears to be no mechanism to hold the presidents and councillors of the local authorities accountable and responsible to the public. At best, they are only accountable to the Penang state government(s) that appointed them. On its part, the state government hesitates to discipline, even less dismiss, the people they appointed.

It is arguable that this perceived failure on the part of local authorities to perform their duties for the benefit of ratepayers was an important factor in the defeat of the BN government in Penang, Selangor, Perak and Kedah, especially in the urban areas, in the 2008 general election.

Indeed, the opposition parties had made local government reform one of their main promises in their electoral manifestoes. Specifically, they promised that local government elections would be restored and that local governments would be made more transparent and accountable.

Now that the Pakatan Rakyat opposition coalition governs five of the peninsular states, it is necessary to fulfill that promise. How might these PR governments go about doing so?

This Memorandum makes three major proposals which are ordered in terms of immediate, inter-mediate and longer-term goals.

First, pending the restoration of Local Government elections, the memorandum calls for the incorporation of certain reforms in the running of the local authorities to make them more inclusive, apart from being more competent, accountable and transparent.

Second, in view of the rapid pace of development in Malaysia, it calls for the development and gazetting of Local Plans as soon as possible (while allowing for as full a public participation as possible), since the National Physical Plan and the Structure Plans of most of the states have already been gazetted. Pending the finalisation of the two Local Plans for Penang, no major project should be approved. Even after the Local Plans are available, all major projects should be carefully scrutinised and the necessary detailed EIAs, traffic and flood risk assessments conducted prior to approval. Currently, most projects are not required to conduct traffic and flood risk assessments, while only preliminary EIAs are required.

Apparently, the Local Plans for Penang Island and Seberang Perai will soon be completed. In keeping with the commitment to involve the public as much as possible, we request that some three (3) months be made available for the rakyat to review and provide feedback on these Local Plans.

We propose that a team of experts involved in the various NGOs work closely with the MPs and ADUNs to mobilise public interest and participation in the review of the Local Plans. In this exercise, emphasis should be given to wider social issues rather than to specific issues affecting particular households or streets.

Third, it calls for the reinstatement of Local Government elections. We understand that laws, including federal laws, will need to be amended. Accordingly, bringing back local government elections will take time, but we stress that it is absolutely crucial for local democracy to do so.

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REFORMING THE CURRENT SET-UP OF LOCAL GOVERNMENT
  
For the past 30 years, about 24 councillors have been appointed to the MPPP and the MPSP, each. Invariably, they were members of one or another BN component party. Some councillors were professionals who were familiar with the workings of local governments. However, most were appointed on the grounds that they were local party leaders rather than on the basis of familiarity, interest or having relevant expertise in the workings of local government affairs. Indeed, a few ended up as councillors principally because they had been unsuccessful in the contest to be nominated as candidates for parliamentary or state assembly seats.

In fact, the LGA Section 10(2) requires that the Councillors be people who are ordinarily resident in the area. They must have a proven wide experience in local government or have achieved distinction in any profession, commerce or industry. Political affiliation is completely irrelevant to the appointment of councillors.

In the event, the previous councillors were all political appointees and ultimately responsible to their party leaders and to the BN state government that appointed them. More than that, they were also beholden to BN federal leaders and federal government policies some of which began to impinge upon the workings of local government as in the privatisation of various services previously undertaken by the local authorities.

Invariably, it led to a transfer of powers from the local and state authorities to the federal authorities. This is consistent with a general trend towards greater centralisation of powers in the hands of the federal authorities during the past decades.
 
Councillors have also been known to use their positions to serve their own interests and become the source of corruption too. The classic case in point was the appointment and reappointment of Zakaria Darus (together with his son and daughter-in-law) to the Klang Municipal Council despite all the expose of his misdeeds. The PR-led state governments should begin to reverse this nepotistic trend.

A. Composition of Councillors

It would be ideal if at least half of the councillors comprised independent people, preferably those representing the NGOs, professional bodies, and even business interests. Half of all councillors, whether party appointees or independents, should be women. This requirement would be consistent with the make-up of the general population.

The ‘888 Formula’ proposed by Edward Lee, the new ADUN for Bukit Gasing in Selangor, is worth considering too. For Lee, one-third of the councillors should come from the NGOs, residents associations, community leaders or local business leaders in the area; one-third professionals from various relevant professions; and one-third qualified political appointees. At any rate, the selection should be transparent and those wishing to be appointed should submit their resumes which should be made available to all for scrutiny. This proposal received much support among ratepayers in Selangor and apparently guided the Selangor Mentri Besar in his selection of the Selangor councillors.

In this regard, the recent appointees to the MPPP and the MPSP leave much to be desired. Only 4 of 24 councillors in the MPPP do not belong to the PR parties. And of these 4, only 2 represent the NGOs while 2 others are representatives of the Chambers of Commerce. Moreover, only 4 of the 24 are women! As well, one of these party appointees is already a state assemblyman whose appointment to the MPPP we consider unnecessary and superfluous.

Likewise, of the 24 appointed to the MPSP only three are independents; two from the Chambers of Commerce and one from the Fed of Malaysian Manufacturers. Not a single councillor hails from the ranks of more civic-minded NGOs. And of the 24 councillors, only 5 are women.

B. Incorporating CAT Principles by Opening Meetings and Minutes

The PR state government has adopted the principles of competency, accountability and transparency (CAT) as a guide to promote better governance. In keeping with CAT, indeed, in line with the provisions of the Local Government Act 1976, full Council meetings should be open to the public and media. In fact, Council meetings in most developed countries are open to the public, and these observers are allowed to make comments from the floor.
 
Under the PR-led government, some restructuring of the permanent committees had occurred. For instance there are only five permanent commit-tees in the MPPP nowadays, namely: the one-stop centre, finance, public health, public transport and infrastructure, and development planning. In turn, each councillor is appointed to two to three of these committees.

It is at these committee meetings that substantive discussions and decisions are made, before they are taken to the full Council meetings for approval/pengesahan.
As such, these permanent committee meetings should be open to the public too. For example, if there had been transparency, the media or concerned civil society organisations might have been able to alert fellow Penangites to the drastic disappearance of the MPSP’s funds over the past five years.

All legal technicalities preventing these meetings from being opened to the public should be addressed.

Meanwhile, the minutes of these committee meetings should be available on request and anyway posted on the MPPP and MPSP websites.

Indeed, in keeping with the CAT principles, the Penang State Executive Council can make the workings of the MPPP and the MPSP more trans-parent and accountable by ruling that these meetings be opened to the public, and/or make their minutes readily available in hard copy or in the websites.

Also, by making these meetings and minutes available, non-performing and self-serving councillors and/or officers, and can then be removed.

C. Establishing a Complaints Bureau

Another initiative is to set up a ‘complaints bureau’ in the municipal councils. Complaints pertaining to the conduct and behaviour of the councils by the councillors, officers and staff when per-forming their tasks and in dealing with the public can therefore be entertained systematically. It follows that a mechanism to deal with these com-plaints, preferably by an ombudsman, who stands apart from the council, should be established. The funds expended for this ombudsman will no doubt be money well spent.

The efficient working of such a complaints bureau and the proper investigation of such complaints will facilitate the incorporation of CAT principles into the workings of the municipal councils. As well, hearsay allegations without basis can also be disposed in this manner.

D. Enforcement, Curbing Political Interference and Corrupt Practices

Yet another initiative is the matter of enforcement, and the related problem of non-compliance.

There are enough laws, by-laws and regulations at the disposal of the municipal councils to promote good governance, what with the added adoption of CAT principles
The common complaint by the public is the uneven application of these laws and regulations. It is common belief among the public that ‘one can get around these laws’ if one has ‘good political connections’ and/or ‘if one is prepared to pay’. Herein is the origin of the scourge of corruption.

The council must ensure that the spirit and letter of the laws and regulations are adhered to without fear or favour. Transparency in the workings of the councils facilitates this call for strict and even application of laws, It also discourages corruption. Accordingly, the Council should only entertain requests by Penang State Executive Councillors, Assemblymen, or Municipal Council only when these requests are put in writing.

Otherwise, enforcement officers should go on with their tasks.

Should council decisions on building plans be disputed there exists the Appeals Board and the proposed Complaints Bureau for ratepayers and developers to take their cases to. Beyond that, the rule of law must apply.

In summary, all council staff, officers and councilors of local and state governments must be disciplined if they try to circumvent the laws and regulations. Councillors should speak out during meetings as to the merits or demerits of proposals. They should not interfere with the workings of the council beyond that point. Likewise, interference by politicians in their individual capacities should not be entertained. At any rate, all such interference must be put in writing before they are to be entertained. This will send the correct signal to the public, to the developers and business com-munity, to the politicians, and to the councillors too.

E. Removal of Privilege to Discount Fines and Compounds

There is no need for councillors and senior officers to be given the privilege of discounting fines, compounds and other payments.

Not only do these discounts diminish potential revenue for the councils. They are the first steps towards encouraging political intervention in the workings of the council. The practice encourages the public to turn to the politicians for assistance rather than persuade them to comply with the laws and regulations. In this regard, this ‘privilege’ can lead to non-compliance and corruption. The privilege should be terminated.

However, it can be left to the discretion of the Council when it seats as a full assembly, to decide whether discounts might be offered to those who show up promptly to pay their rates or fines.

F. Increasing the number of local councils in Penang

A restructuring of local government in the country at large needs to be undertaken since the last review was done about 30 years ago.

In Penang, there are currently only two municipal councils MPPP on the island, and MPSP on the mainland. Compared to the councils in the other states, the MPPP and MPSP are very large indeed. At one point, the MPSP even boasted that it was ‘the largest local authority in the world’.

In contrast, Perak is divided into 15 different councils while Selangor is divided into 12 councils. Under the circumstances, there is reason to break up the MPPP and the MPSP in order for improved delivery of services as well as to facilitate development planning. Further, if the commitment is to encourage peoples’ participation in decision-making, then devolving decision-making to be closer to communities will help do this. It will give the CAT (competent, accountable and transparent) principles a better chance of being ‘real’ and contribute to establishing a ‘culture of involvement’ which is essential if we are to make reference to ‘public participation’ a reality.

In addition, with the creation of more local councils, the differences between George Town and the western part of the island could perhaps be better addressed. Likewise, the needs of Nibong Tebal and the southern part of Seberang Perai might be better catered for with the creation of one or two additional councils on the mainland.

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LOCAL PLANS MUST BE COMPETENTLY PREPARED, THE PUBLIC CONSULTED AND GAZETTED

In view of the pace of development occurring in Penang, it is extremely important to develop and gazette Local Plans, as provided for under the TCPA 1976. A Local Plan is an essential planning document and it is our stand that no major development plan (for example, the PGCC project or any major reclamation project) should even be considered before a Local Plan is finalised.

Under the Act, the public is given the opportunity to give their views and to participate in the decision-making on the details of development in the area in question, at all stages of the development of the Local Plans. In this regard the State Planning Committee, MPPP and the MPSP must act transparently.

Apparently, the Local Plans for Penang Island and Seberang Perai will soon be completed. We request that some 3 months be made available for the rakyat to review and provide feedback on these Local Plans, especially since the legal provision that the public should have been involved at the beginning of the Local Plan process seems to have been ignored. 

We further propose that the ADUNs and MPs organise public meetings in their respective constituencies to inform the public about the pro-posed Local Plans. On these occasions, a team of experts derived from the NGOs, who have scrutinised these Local Plans, can be invited to address the public about matters contained in the Local Plans which are of wider community concern.

Otherwise, the review process might get bogged down with particular concerns of individual households. Put another way, we propose that a team of experts involved in the various NGOs work closely with the MPs and ADUNs to mobilise public interest and participation in the review of the Local Plans. In this exercise, emphasis should be given to wider social issues rather than to specific issues affecting particular households or streets.

This principle of involving the public at every level of decision-making is further underscored by the commitment of the Malaysian government to the Rio Declaration and Agenda 21, which was the outcome of the Rio Summit.

Pending the finalisation and review of the Local Plans, the State government, the Municipal Councils and the Department of Environment (DOE) should require the proponents of a major project to prepare a detailed EIA, including traffic and flood risk impact assessments. These studies should be done by reputable and independent consultants chosen by the local council and DOE (and not by the project proponent).
 
In the event of a major development project, the public in general should be allowed to register their objections to the proposed plan. Presently, only those who own properties within 20 metres of the proposed project have locus standi and are allowed to register their protests. This 20 metre ruling is unnecessarily restrictive, since these major projects have a much wider impact than just 20 metres beyond the project site. In two recent cases, - the Hunza ‘Gurney Paragon’ and the PGCC projects, NGOs like the Penang Heritage Trust were not allowed to register their protests on such grounds.

Moreover, in both cases, no detailed EIAs were required by the DOE. Although common sense indicated that serious traffic congestion would result in the case of Gurney Paragon, no traffic impact assessment was conducted. Instead, approval was granted on the basis that future projects like PORR, the monorail system, and phase 5 of the one-way traffic scheme would alleviate the problem. Now of course it has been announced that funds will not be forthcoming for PORR and the monorail system. This means there will be massive traffic congestion in the Gurney Paragon area and so the densities and high plot ratios approved for this project should be revised. At any rate, there is an important lesson here, namely that traffic impact assessments must be insisted on in cases of major projects.

Our point is that public review and consultation should be widely conducted, while detailed EIAs required, in the case of major projects.

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BRINGING BACK LOCAL GOVERNMENT ELECTIONS
 
Though presented last, in fact, bringing back local government elections is a crucially important recommendation. For they have the potential of deepening democracy in Malaysia.

The Local Government Act (LGA) 1976, Sec 15 (1) states: ‘…all provisions relating to local government elections cease to have force or effect’.

Notwithstanding this provision in the LGA 1976, there are mixed views by different experts as to whether the PR-led states might be able to legally conduct local government elections without the consent of the BN-led federal government. Nevertheless, the PR-led governments must attempt to fulfill their promises even if in the end their attempts to do so are reversed by the courts.

It is worth reproducing the following legal opinion culled from Derek Fernandez’s ‘How Local govern-ments can be elected’ (theSun 30 April 2008 and 2 May 2008). Fernandez argues that the PR-led governments have the legal grounds to introduce local government elections even without the federal government’s consent.
 
Article 113(4) of the Federal Constitution provides that federal or state law may authorise the Election Commission (EC) to conduct elections other than those referred to in Clause 113(1).

Clause 113(1) refers to elections for the House of Representatives and the Legislative Assemblies of the states.

Hence the state government can pass laws for the elections of local government and can authorise the EC to do so. Note also under Article 95B(1)(a) of the Federal Constitution in the 9th Schedule, the state has power in relation to local government.

In fact, the Local Government Election Act 1960 was passed for this purpose but was suspended under the Emergency (Suspension of Local Government Elections) (Amendment) Regulation 1965, made under the Emergency (Essential Powers) Act 1964 which regulations were preserved in the 1979 Emergency (Essential Powers) Act 1979 as if made in 1965.

However, in 1976 the Federal Government acting under Article 76(4) of the Federal Constitution passed the Local Government Act which enacted Section 15 removing any rights to local government elections under any previous law and Section 10 providing for the appointment of the councillors
It is important that at that time the only law for local government elections was the Local Government Act 1960 which was already suspended under the Emergency (Essential Powers) Act 1964.

Nevertheless, the Federal Government thought it fit to enact the Local Government Act 1976, Article 76(4) making it a federal law in respect of a state matter for the purpose of promoting uniformity of the laws. The Federal Government did not use Article 76(3) which would have made it a state law and therefore could be repealed by the State Legislature.

The Legislature specifically enacted Section 1(4) of the Local Government Act 1976 which provides as follows: ‘The State Authority may, notwithstanding the provisions of subsection (2) 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 by-laws’ (emphasis added)

This means that the State Government can exempt any area of the local government from Section 10 and Section 15 of the Local Government Act and enact fresh laws providing for local government elections under Article 113(4) and paragraph 4a of the 9th Schedule of the Federal Constitution. Such laws can be similar in substance to the Local Government Act 1960 or in whatever form the State feels is correct.

Hence, in spite of the Emergency (Essential Powers) Act 1979, it is still arguable that even the Emergency (Suspension of the Local Government Elections) Regulations is no longer valid because there is no longer any Emergency. Moreover, the fact that Parliament passes laws which are not required by a reason of emergency implies that there is none, otherwise all the laws of Parliament passed after 1965 would be invalid. This is so because all these laws do not state that they are required by reason of the emergency as required by Article 150(5) of the Federal Constitution. In any event, it only suspends the operation of the Local Government Elections Act 1960 which is now superseded by the Local Government Act 1976 which ‘covers the field’ for local government matters. Thus it can be persuasively argued that there is no inconsistency between the Local Government Act 1976 and in particular the exemption under Section 1(4) and the Emergency Regulations (emphasis added).

However, Fernandez is of the opinion that it might take up to two years for the PR-led governments to enact the necessary new laws. 

Put another way, it is argued that the State Authority may exempt, say Penang Island or Seberang Perai, or both, from the provisions of Sec 10 and 15(1) LGA. The Penang State Assembly could then introduce the necessary enactments to revive local government elections in these specified areas. The PR MPs should also introduce the necessary amendments to the Local Government Act and to the Federal Constitution itself, though of course, this would be even more difficult since they do not constitute a majority, let alone a two-third’s majority, in Parliament.

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** Republished with permission. This report appeared in the Penang Forum Report of Working Groups, published in December 2008.

References

  • Ahmad Chik, ‘Local Plans Needed’ Aliran Monthly 28(1), 2008, pp. 21-2.
  • Derek Fernandez, ‘How Local Governments can be elected’ theSun 30 April 2008
  • Derek Fernandez, ‘What Makes a Local Councillor’ theSun, 2 May 2008
  • Goh Ban Lee, Non-Compliance: A Neglected Agenda in Urban Governance, Skudai: Universiti Teknologi Malaysia, Institute Sultan Iskandar of Urban Habitat and Highrise, 2002.
  • Goh Ban Lee, Counselling Local Councils, Kuala Lumpur: FOMCA and ERA, 2007
  • Report of the Royal Commission of Enquiry to Investigate into the Workings of the Local Authorities in W. Malaysia, 1968, headed by Senator Athi Nahappan, Kuala Lumpur: Government Printers, 1970, (also known as the Athi Nahappan Report).
  • Report of the Committee to Study the Implications of the Report of the Royal Commission of Enquiry to Investigate into the Workings of Local Authorities in West Malaysia Part I, Kuala Lumpur: Government Printers, 1971.

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