LoyarBurok has been pursuing the return of local council elections. You’ve read that we don’t need the EC to hold local council elections and you’ve voted on our poll that you want this process restored. Here the constitutionality of the Local Government Act is considered.
The federal government would like to see local government elections dead and buried. Many NGOs and activists, and a handful of state governments, wish to witness the phoenix rising.
This article presents the writer’s views on the state of the law relating to local government elections in Malaysia. The desirability, or otherwise, of such elections, which has received much public debate, will not be dealt with here.
This article will not canvass all the legal arguments that can be envisaged on the subject. Rather, it will focus on just a couple of the major arguments – those that the writer finds clear, indisputable or least controversial.
It deliberately leaves out arguments that are debatable in nature, because the answer sought can already be found via those arguments that are crystal clear.
Dead and buried
Those who say that local government elections are no longer permitted by the existing law argue their position along the following lines:
a) Since the coming into force of the Local Government Act 1976 (LGA), local councillors are to be appointed rather than elected, as required by Section 10 of the LGA. Section 15(1) of the LGA is crucial and central to their argument. It is worded as follows:
Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.
b) Section 15(1) is said to have the effect of abolishing and prohibiting local government elections. Therefore, the Local Government Elections Act 1960 (LGEA), which provides for local government elections, is said to be no longer effective, even though the LGEA has never been repealed. One might say that its operation has been “suspended.” Currently, it is argued, the law does not allow local government elections, because of the existence of Section 15(1).
To the proponents of the above argument, the case is closed.
But is it?
Avoiding or opting out of Section 15(1)
Many who hold opposing views have suggested that a state government could opt out of the application of Section 15(1) of the LGA and, after doing so, hold local government elections (by relying on the LGEA or otherwise).
Their argument is as follows:
a) Section 1(4) of the LGA provides that:
The State Authority may [notwithstanding that it had earlier adopted 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.
b) Therefore, it is argued that a state government can invoke Section 1(4) to bring itself out of the application of Section 15(1) and related provisions. After opting out, the obstacle for holding local government elections would have been removed, and the state government can then hold such elections.
This approach appears simple. But it proceeds on the basis that Section 15(1) of the LGA is indeed the valid and current law on the matter of local government elections. If Section 15(1) is not the valid or applicable law on the matter, then there will be nothing to be opted out of.
In my view, that is precisely the case, i.e. that Section 15(1) of the LGA is not the valid or applicable law on local government elections, for several reasons.
I wish to presently discuss two of those reasons (and that which I consider clear and beyond question).
What is the current applicable law on local government elections?
Why the LGA is invalid
There are two main reasons why Section 15(1) of the LGA is invalid.
The first reason is that Section 15(1) is unconstitutional and therefore void.
The second reason is that the LGEA is, in fact, currently the applicable law on local government elections. I will explain.
To recap, Section 15(1) states 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.” Section 15(1) obviously has the intention and effect of prohibiting local government elections. That is where its problem lies.
We have Article 113(4) in our Federal Constitution, which provides that: “Federal or State law may authorise the Election Commission to conduct [local government elections].” What does this constitutional guarantee mean? It means the following:
a) Local government elections are constitutionally permissible.
b) Local government elections are mandated but are not mandatory.
c) Local government elections cannot be prohibited altogether (short of an amendment to the Constitution), since any prohibition will have the effect of nullifying the constitutional intent of Article 113(4).
Now, we have on the one hand Article 113(4) of the Federal Constitution that says that local government elections are permissible; and on the other hand Section 15(1) of the LGA that says that local government elections are impermissible. Section 15(1) is inconsistent with Article 113(4).
Which will prevail – LGA or The Constitution?
The answer is clear and simple. The Constitution prevails. Any statutory provision that is inconsistent with the Constitution will be void. This is a basic constitutional-law principle, and is also expressly stipulated in Article 4(1) of the Federal Constitution itself. (emphasis by LB)
I come to the second (and separate) main reason why Section 15(1) of the LGA is not the applicable law on local government elections.
It is not disputed that, not only was the LGEA never repealed, it was in fact revised in 1991, pursuant to the Revision of Laws Act 1968. It became Act 473, with effect from 16 September 1991. This is a most significant fact, because of the legal effect of a revised law.
Section 10(2) of the Revision of Laws Act 1968 provides as follows:
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 force on that date.“ (emphasis mine)
This means that the LGEA has, since 16 September 1991, unquestionably becomes, for all purposes, the sole and only proper law in relation to local government elections!
The result is this. Apart from being unconstitutional and void, Section 15(1) of the LGA also cannot be the current applicable law relating to local government elections; because it is the revised LGEA that is (as from 16 September1991) the “sole and only proper law” on local government elections. This must be so “for all purposes,” and beyond question by any court at that!
Beyond doubt
It is quite clear that:
a) Section 15(1) of the LGA is unconstitutional and void; and
b) In any event, the existing law concerning local government elections is in fact the LGEA 1960 (as revised in 1991), supported by the constitutional mandate and guarantee of Article 113(4) of the Federal Constitution.
To me, this is not just arguably so. It is plainly so. It is so, beyond doubt.
If the law were a science, or a mathematical formula, I would bet my life on the above analysis. But obviously the law is neither a science nor mathematics; therefore I shall not wager even a penny, for I am acutely aware that there is a huge gap between a legal opinion and a judicial pronouncement, at times bridged not entirely by meticulous analysis of sound legal principles.
The challenging reality in today’s Malaysia that confronts matters of this nature can sometimes mean that the argument of strength might overshadow or cloud the strength of argument.
We will have to wait and see.
LB: Yeo Yang Poh, a senior lawyer, is a former chairperson of the Bar Council. This article was previously published here.
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I beg to differ with Mr Yeo. Article 113(4) does not refer at all to local government elections, and so cannot be seen to be given the state the indefeasible right to authorise local government elections in the face of federal law.
Article 113(4) allows federal or state law to authorise "elections other than [Dewan Rakyat and state legislative assembly elections]". The federal and state legislatures clearly can each only authorise elections only within their respective areas of legislative power, e.g. hypothetically, state law can authorise elections to the state Majlis Agama Islam (a state matter), but it cannot authorise elections to the board of Bank Negara (a federal matter).
Article 76(4) having given Parliament the right to legislate for uniformity of law and policy in local government, and Parliament having exercised that right by providing for appointed local councils throughout Malaysia (LGA 1976), it cannot now be within the legislative power of the state to contradict federal law by authorising local government elections – see on this point City of George Town v State of Penang [1967] 1 MLJ 169, where the state was trying to go against the LGEA 1960 (a federal law passed under Article 76(4)) by amending the Straits Settlements Municipal Ordinance (a state law) to allow the chief minister to suspend the elected City Council. HT Ong FJ (as he then was) regarded the state government's arguments on the state's legislative competence as 'manifestly absurd' and 'frivolous and vexatious'.
Mr Yeo's argument with reference to the Revision of Laws Act 1968 also fails because the LGEA 1960 does not deal with elections to the post-1976 local councils. The LGEA 1960 authorises elections to the pre-1973 local authorities – the definition of "local authority" in the Act refers to "municipalit[ies] established under the Municipal Ordinance" (i.e. the Municipal Ordinance of the Straits Settlements, as applied to Penang & Malacca and as extended to the Malay States, which was repealed in 1973). The existing local councils are entirely new creations of s. 3 of the LGA 1976, so are not governed by the LGEA 1960.
See my argument in full at http://www.malaysiakini.com/letters/135342
If the LGEA had been suspended and/or superceded by LGA as argued by some quarters, my question is, can an Act that had been suspended and/or superceded by another Act be amended? To me, LGEA is the law applicable to local gov't election.