Tuesday, November 11, 2008

A Lawyer's Diary (4)

LOCAL GOVERNMENT ELECTION : REINSTATEMENT WITHOUT AMENDING LOCAL GOVERNMENT ACT 1976 THROUGH PARLIAMENT

INTRODUCTION

Much has been said and argued about the reinstatement of the local government election (“LG Election”). In fact, reinstatement of LG Election formed part of the manifesto of opposition in the 12th General Election. The very fundamental movement towards a matured democratic society must start with an LG Election. Without which, there cannot be true democracy.

This article is not written to analyze the effectiveness/efficiency of elected local authority than the appointed local authority. Rather, to provide some thought as to the alternatives available to those States which differ from the Federal Government in respect of LG Election. To put in another words, the purpose of this writing is to seek solution available to the State Governments (quite clearly the State Government under Pakatan Rakyat) who wish to hold LG Election, but feel constrained by the Federal Law and Federal Government, where the latter prefers local authority members to be selected.

Now I may sound naïve to assume that there is genuine intention of the Pakatan Rakyat State Governments to move for LG Election. Nevertheless, without such naïve presumption, it serves me no purpose of writing this article.

LOCAL GOVERNMENT ELECTION – LAWS THAT PERMITS AND PROHIBITS

From historical perspective, there was a legislation called Local Government Election Act 1960 (“LG Election Act”), authorizing LG Election. Section 5A of the LG Election Act provides :

“Notwithstanding anything to the contrary contained in the provisions of any written law which relates to Local Councils in force in any State, the State Authority may, after consultation with the Election Commission in respect of the boundaries of the local area and the number of Councillors to be elected to the Local Council having jurisdiction in such area, by order published in the Gazette of the State direct that the whole or a majority of the members of a Local Council shall be elected under this Act”

Subsequently, the Parliament deemed fit to enact the Local Government Act 1976 (“LG Act”) comprises of the provision affecting the LG Election in Section 15(1), which reads :

“Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect”.

It is accepted that the Federal Law ceases to have effect when it is expressly repealed by another Federal Law. In this case, the Parliament appears not to label their intention to stop LG Election by repealing the LG Election Act, as the Parliament did not include LG Election Act as lists of repealed law in the Second Schedule of LG Act pursuant to Section 166 of the same. However, by introduction of Section 15(1), Section 5A of LG Election Act became inconsistent with Section 15(1).

So, there arises a question whether Section 5A of LG Election Act has been repealed by “implication”. Repeal by implication is not unprecedented, and certainly not ruled out by Courts as unconstitutional. Nevertheless, there is always presumption against repeal by implication. The rationale is simple : the legislator is presumed to know the existing law, so when enacting a new law without providing repeal of old law, it gives out an intention not to repeal the existing legislation. In this case, Section 166 of LG Act provides for list of repealed acts/enactment, but LG Election Act was omitted. What is the proper interpretation of these provisions?

Quite clearly, these two provisions (Section 5A of LG Election Act and Section 15(1) of LG Act) cannot stand together. They contradict each others. In my view, this is a classic case where the Court would apply the principle of repeal by implication to strike down one of them. So, under this principle, the later supersedes the earlier. In the words of the Indian Supreme Court, the expression of “notwithstanding anything to the contrary contained in any written law” is a simple way of doing away the effect of pre-existing inconsistent law. The LG Election Act appears to have been enacted in 1960 where the LG Act was in 1976. Hence, LG Act prevails, and the operating law is Section 15(1) of LG Act which PROHIBITS LG Election.

The State Assembly is authorized by the Federal Constitution to enact law relating to local government. This is provided in Ninth Schedule, List (II), paragraph 4(a), including, of course, the local government election to its office bearers.

However, the Parliament may, in certain matters, and for the purpose only of ensuring uniformity of law and policy, make laws with respect thereto. According to Article 76 of the Federal Constitution, these matters include local government, which necessarily include local government election too.

The law made under this list shall be considered as Federal law but not State law. The State Assembly is limited by Article 75 of the Federal Constitution which provides :

“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.”

It is therefore without doubt that the Federal legislation has power to make law pertaining local government election, and the State Assembly does not have power to repeal or amend it. The State Assembly too cannot make law that is inconsistent with the Federal law. The interim conclusion at this stage of analysis is that : in view of Section 15(1) of LG Act, the State Assembly cannot make law, despite so authorized by the Ninth Schedule, to “reinstate” LG Election. This conclusion of course is premised on the assumption of constitutionality of Section 15(1), which is the subject of my next discussion.

LEGAL SOLUTION (1) : CONSTITUTIONALITY OF S. 15(1)

Let me recap my conclusion above so as not to give impression of confusion and inconsistency. The incontrovertible conclusion of “the Federal legislation has power to make law pertaining local government election” does not necessarily means “the Federal legislation has power to make law to deprive local government election.”

Article 113(4) of the Federal Constitution provides :

“Federal or State law may authorise the Election Commission to conduct elections other than those referred to in Clause (1).”

Article 113(1) expressly confer power to either the Federal legislative body or State legislative body to command the Election Commission to conduct “other election” by way of Act of Parliament, or Enactment of a State. In my view, the words “elections other than those referred to in Clause (1)” encompass the LG Election.

The intention of this provision is clear : both Federal and State are conferred power to conduct LG Election through the Election Commission. Such power, in so far as the States are concerned, is vested by the Supreme law of the land.
It is my argument, Section 15(1) of LG Act, by declaring ceasation of all law relating to LG Election, has the effect of depriving the State legislature to make law to conduct the LG Election. Not only Section 15(1) of LG Act repealed implicitly the Federal Law authorizing LG Election, it prevents the State Assembly from making law within their express purview. It renders a constitutional power conferred by Federal Constitution ineffective.

It is provided in Article 4(1) of the Federal Constitution that

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

The Supremacy of Constitution has been repeatedly upheld in all the Courts of modern societies, and recognised as sanctity of law. Thus, the inconsistency between Section 15(1) of LG Act and Article 113(4) should be resolved in favour of Article 113(4). Section 15(1) of LG Act, in my view, should be declared unconstitutional.

Section 15(1) of LG Act cannot be saved by its constitutional backing in Article 76. Article 76 is an enabling provision or power conferring provision, namely to provide power to the Federal legislation to make law that regulate local government, including local government election. So, there should not be any dispute if the Federal legislation makes law to regulate local government election by setting out the procedure and rules applicable throughout the Peninsular. Article 76 only serves to protect Federal law, like LG Election Act from being struck down for unconstitutional for transgression the State List. The conferring of power to regulate a matter cannot be taken to include conferring power to repeal or deprive the other legislative authorities’ power to make law pertaining the same, particularly when it is confronted with the express provision on specific matter in Article 113(4).

LEGAL SOLUTION (2) : EXEMPTION BY GAZETTE

If the State authority does not wish to engage with the Federal on legal battle, which in any event, uncertain as to it outcome, a practical approach may be found in LG Act itself.

Section 1(4) of the LG Act provides :

“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.”

So, Section 15(1) of the LG Act is not absolute and permanent. The Act itself permits exemption of its operation by Gazette. In this respect, perhaps Section 1(4) is the better option. At the risk of being inconsistency, an argument can in fact be advanced that if we read Section 1(4) and 15(1) of LG Act together, there is nothing unconstitutional about Section 15(1) because after all, the State authority is still empowered to suspend operation of Section 15(1) of LG Act in the event they GENUINELY wish to reinstate LG Election. In such situation, Section 15(1) posed no prohibition to LG Election.

So now left the question of political will on the part of Pakatan Rakyat which is tested by time.

3 comments:

Snowpiano^ ^ said...

Post this article to some people who may in concern already. :)

Hope they mean what they promise yah!

Cheers for a better Malaysia! :D

mut said...

This means the EC will still be needed; will they play ball? They would be the ace in the hole for BN in any type of elections.

I do not think BN will agree as it will bring pressure on them to do likewise for areas under their control.

KL and JB would be a major prize, and they are not going to give up their periuk nasik just like that.

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