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THE FOLLOWING is the report of the Local Government Elections Working Group (WG), set up by Penang State Executive Councillor in charge of Local Government and Traffic Management, YB Chow Kon Yeow. The task is to provide a road map towards local government elections in Penang. This report was prepared by Dr Goh Ban Lee (Chairman) on behalf of the Group comprising YB Liew Chin Tong, Haji Mohideen Abdul Kader, Ms Lim Kah Cheng, Encik Ahmad Chik, Ms Lau Shu Shi, Encik M Murgan (MPPP), Encik Mansor Hashim (MPSP), Mr Jonathan Yeoh (Policy Aide to YB Chow Kon Yeow) in attendance, Mr Khor Hung Teik & Ben Wismen of the Socio-Economic Research Institute (SERI) which act as the secretariat. REPORT OF THE LOCAL GOVERNMENT ELECTIONS WORKING GROUP
MEETINGS AND ISSUES Four meetings were held. Topics of discussions included:
1. Democracy and elected governments and the slogan “No taxation without representation”;
2. History of elected local government in Malaysia;
3. Roles of councillors and presidents or mayors
4. Recommendations of Athi Nahappan Report especially on elected local government and the criteria of councillors;
5. The Local Government Act 1976, especially its implications on elections;
6. Views of certain personalities and parties on elections under the existing laws, such as those of Derek Fenendez and the Penang Forum;
7. If elections were to be held, the authority, including the Election Commission, to conduct elections under the present conditions;
8. Financial implications of holding elections under the present conditions; and
9. Restructuring local government. Back to top
BRIEF HISTORY OF LOCAL GOVERNMENT ELECTIONS IN PENANG
1. As early as 1800, an informal Committee of Assessors was formed by the rate-payers of George Town to play a role in the workings of the colonial government then, especially in issues relating to rates and expenditure. In 1857, the first experiment in elected representatives in the government was carried out in Penang. Three out of the five municipal commissioners for the George Town Municipal Commission were elected. Partial elections in George Town were abolished in 1913. It was in 1951 that partial elections were reintroduced. Nine out of the 15 commissioners were elected. In 1956, George Town became the first local council in the country to have a fully elected council with the president elected from among the councillors.
2. On the Jan. 1st, 1957, the Municipality of George Town was elevated to a City and the Municipal Council became the City Council of George Town. In 1963, a councillor accused some fellow councillors of corruption. In an attempt to clear its reputation, the city councillors passed a resolution calling for a commission of enquiry. This was only established in 1966.
3. In 1965, local government elections in Malaysia were suspended. The official reasons given was that the country was facing the threat of Confrontation initiated by Indonesia.
4. On July 1, 1966 administration of the George Town City Council were transferred to the Penang Chief Minister to facilitate the workings the Commission of Enquiry under Dato’ Justice Abdul Aziz Mohd. Zain.
5. The Aziz Commission, as it was unofficially known, found that acts of maladministration, malpractices and breaches of the law were committed by both councillors and officials of the City Council.
6. The Alliance State Government fell in 1969 after losing in the general elections and Parti Gerakan Rakyat Malaysia (Gerakan) under Tun Dr Lim Chong Eu become the State Government.
7. In 1971, the remaining four local councils in the state were taken over by the State Government.
8. In 1974, the five local councils were replaced by two boards of management, known as Lembaga Pengurus Kerajaan Tempatan (LPKT), one each on the island and the mainland.
9. The Local Government Act was passed in 1976 that provided for only appointed councillors and presidents and was adopted by the Penang State Government. The State Government set up Majlis Perbandaran Pulau Pinang (MPPP) and Majlis Perbandaran Seberang Perai (MPSP). All councillors, including the presidents were appointed. With the exceptions of the District Officers, all were nominees of political parties.
10. In the 8th March 2008 general election campaigns, both the DAP and PKR promised to bring back local government elections if they formed the State Government.
11. During the March 8th General Elections, the Barisan Nasional lost control of Penang State Government. It was replaced by the Pakatan Rakyat State Government, made up of DAP, PKR and PAS.
Back to top DECISIONS AND RECOMMENDATIONS Local Government Elections
1. The Working Group (WG) acknowledges that Penang must have elected local government. This means that the presidents and councillors must be chosen by the people on the principle of “No taxation without representation”. Since the local councils impose assessment rates (cukai pintu) on property owners and other fees in relations to issuance of licenses and permits, the people must choose their representatives in the councils.
2. The WG also acknowledges that elected local councils do not necessarily lead to more efficiency or effectiveness as can be seen in the local councils in other countries. But elections ensure some degree of accountability as the rate-payers have a chance to choose their government.
3. Currently, the existence and power of the local councils are regulated by the Local Government Act of 1976. Other major laws related to the workings of local councils include the Town and Country Planning Act of 1976, Street, Drainage and Building Act of 1974 and the Uniform Building By-laws. All these laws are parliamentary acts and adopted by the Penang State Government.
4. The LGA was adopted by the Penang State Government in 1976. As stated in the Government of Penang Gazette: “In exercise of the powers conferred by sub-section (2) of section 1 of the Local Government Act, 1976, The State Authority of Penang, in consultation with the Minister of Local Government and Federal Territory, hereby appoint the 15th December 1976, as the date on which the said Act shall come into force in the State of Penang”. (Dated this 13th day of December, 1976) (Wong Hin Fatt, Clerk of Council, State Executive Council, Pulau Pinang).
5. Section 10 of the LGA provides for the State Government to appoint the councillors, including the presidents. Quote: “Councillors of the local authority shall be appointed from amongst persons the majority of whom shall be persons ordinarily resident in the local authority area who in the opinion of the State Authority have wide experience in local government affairs or who have achieved distinction in any profession, commerce or industry, or are otherwise capable of representing the interests of their communities in the local authority area” (3).
6. Section 15 (1) of the LGA states, “Not withstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect”.
7. There are, however, some opinions to the effect that the State Government can introduce local government elections. For example, according to a lawyer, “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 the paragraph 4a of the 9th Schedule of the Federal Constitution. “Such laws can be similar in substance to the Local Government Elections Act 1960 or in whatever form the State feels is correct” (Fernandez, D. 2008).
8. However, according to M. Murgan, the Director of the Legal Department of the MPPP, “As long as Section 15 and other provisions in the LGA in particular Section 10 remains in the LGA, local government elections cannot be revived” (Murgan, 2009).
9. The WG also considers the issue of uniformity as provided for under Article 95A of the Federal Constitution. Clause 5 of Article 95A provides that “It shall be 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 promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the Federal and State Government shall follow the policy so formulated”.
10. Furthermore, on 28th November 1971, the National Council for Local Government decided that the suspension of local government elections should continue to be in force as elective local government was a late colonial intrusion which did not flourish within the Malaysian political system.
11. In the opinion of Murgan, “Prior to the passing of the LGA, the State Authority of Penang and other states in the Federation had been consulted about the LGA and have agreed to accept and adopt all the provisions of the LGA. Having agreed, the State Authority of Penang cannot now reconsider and refuse to adopt or follow Section 10, 15 and other relevant provisions in the LGA. To do so, would raise a constitutional crisis and be contrary to Clause 5 of Article 95A which provides inter alia that the State Government shall follow the policy so formulated. It would be improper and inappropriate to disregard or to depart or deviate from the agreement or consent reached at the NCLG”.
12. The WG also considers the body or agency to conduct local government elections, assuming that the State Government can unitarily hold local government elections. Questions are raised whether the Elections Commission will take instructions from the Penang State Government to carry out elections to elect local councillors.
13. Furthermore, there is also the question of funds. One of the committee members believed that it could be as much as RM20 million.
14. Other issues brought up include the use of schools and the cooperation of the Police. The WG agrees that without the support of the Federal Government, the State Government would face serious difficulties to get the Education Department and the Police to co-operate in the holding of local government elections.
The WG concludes that Penang State Government cannot hold local government elections without changing the Local Government Act and this can only be done in the Parliament. It is also the opinion of the WG that the Penang State Government has to discuss this matter at the National Council for Local Government and gets its consent before local government elections could be held.
Nevertheless, the WG also recommends that the Penang State Government engages a reputable legal firm to write an opinion piece on whether a state government can hold local government elections without amending the Local Government Act in the Parliament.
Councillors and Presidents or Mayors
1. When elections are reintroduced, on issues related to councillors and presidents, the WG recommends that most of the proposals by the Report of the Royal Commission of Enquiry to Investigate into The Workings of Local Authorities in West Malaysia, better known as the Athi Nahappan Report (1968) be adopted.
2. For example, it is recommended that “party politics should be allowed despite its good and bad aspects and those who which to stress their faith in non-conformism should have the right to stand as “independent”.
3. Furthermore: “a councillor should not be required to vacate his seat in a local authority if he resigns from his political party or joins another party”.
4. If and when councillors are elected, the mayor should be elected from among the councillors. However, the WG also acknowledges that major cities in the world have turned to direct election of mayors, such as the Mayor of London.
5. Further deliberations in this issue are needed.
Restructuring of Local Authorities in Penang
1. The WG recommends that if and when local government elections are reintroduced, there is a need to restructure the local authorities, both in its spatial terms and in the roles and functions. Currently, the State Government has very little functions vis-à-vis the local authorities.
2. However, as this is not the task of this WG, it is recommended that a new working group be constituted to work on this area. As this is a very complicated issue, funds must be provided for the employment of research assistants.
Actions that Need to be Taken by the Penang State Government
1. The Penang State Government must adopt a resolution in the State Assembly calling on the Federal Government to bring back local government elections.
2. In this regard, the State Government should also set aside funds for the state and non-governmental organizations to carry out activities to promote the importance of having elected local government.
3. The Penang State Government’s representative to the National Council for Local Government (NCLG), namely YAB Lim Guan Eng, or his representative, should bring up the topic of local government elections in this council and argue for bringing back local government elections. He should also work with other Pakatan Rakyat state governments on this issue.
Independent Panel for the Selection of Councillors
1. The WG also recommends that until local government elections are held, the selection of councillors in Penang should be done by an Independent Panel for the Selection of Councillors (IPSC). This panel is to be appointed by the State Government. It is recommended that a panel of five to nine members of made up of citizens of good reputations to select councillors and recommend them to be appointed by the State Government.
2. The State Government should draw up the Terms of Reference for the workings of the IPSC. These should include clauses to ensure spatial and geographical distribution of councillors, gender participation, ethnic participation and educational level. IPSC must also ensure that the provisions of Section 10 of the LGA are not violated.
3. It is also the recommendations of the WG that the IPSC be advised to hold “informal” elections for councillors in an area to keep the flames of local democracy alive in Penang. The area chosen for the beginning of “bringing back the third vote” should be one where the local resident association is robust and active, such as in Tanjung Bungah or Bayan Baru.
4. The IPSC must be provided with adequate financial resources to carry out its activities and to engage secretarial assistance.
5. It is also recommended that members of the panel should be changed periodically to facilitate wider citizen participation and prevent creation of “entrenched” personalities in the selection of councillors.
6. The final decision in the appointment of councillor is still the state government.
The findings of the Working Group were presented to the Local Government Forum on 31st March 2009. Members of the Forum were invited to provide feedback to the WG. None has been received.
A draft report was also circulated among the members of the WG. The members were informed that they could submit a Minority Report.
YB Liew Chin Tong submitted a short Minority Report to the effect that the Independent Panel for the Selection of Councillors only make recommendations on who to be appointed councillors from a list of nominees prepared by the State Executive Councillor in charge of local government.
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REFERENCES - Anwar Fazal (undated) The struggle for local democracy in Malaysia – challenges and opportunities, paper presented at the National Convention of Citizens and Residents Association on Planning and Local Government Acts, 19.12.1999, Kuala Lumpur.
- Athi Nahappan Report (1968) Report of the Royal Commission of Enquiry to Investigate into The Workings of Local Authorities in West Malaysia. Government Printers.
- Fenandez, Derek (2008) How local governments can be elected, theSun, 30 April 2008.
- Goh Ban Lee (2003) Local government polls a lesser of evils, theSun, 14 Jan. 2003.
- Goh Ban Lee (2004) Basic right to decide local government, theSun, 9 March 2004.
- Goh Ban Lee (2005) Athi Nahappan Report calls for local elections, theSun, 12 April 2005.
- Goh Ban Lee (2005) The demise of local government elections and urban politics, in Elections and Democracy in Malaysia, edited by Mavis Puthucheary and Norani Othman, Penerbit Universiti Kebangsaan Malaysia: Bangi.
- Goh Ban Lee (2008) Counselling Local Councils, Fomca: Kuala Lumpur.
- Lim Kit Siang (1978) Why Local Government should be Elected, in Time Bombs in Malaysia, DAP, Petaling Jaya.
- Malaysia (1976) Local Government Act, Government Printers.
- Maria Chin Abdullah (2008) Local government and public participation: the NGOs, paper presented in Seminar on Local Government in Malaysia: the Search for New Directions, organized by Centre for Malaysian Chinese Studies, Kuala Lumpur.
- Murgan, M (2009) Restoration of Local Government Elections.
- Penang Forum (2008) Report of Working Groups.
- Tennant, Paul (1973) The Abolition of Elective Local Government in Penang, in Journal of Southeast Asian Studies, Vol. 4, No. 1.
Yeoh, Jonathan (2008) Challenges and Obstacles faced by State Government in Reinstating Local Government Elections.
Back to top ** Republished with permission from the Group. This report was prepared on June 16, 2009. Related articles
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