I refer to the Malaysiakini article Rising from the ashes: Local gov’t polls in M’sia .
Section 15 (1) of the Local Government Act 1976 provides 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’. This section, together with s. 10 of the 1976 Act (which provides for the appointment of local councillors by the state government), is understood to prevent local government elections in Malaysia.
It is argued, by Yeo Yang-Poh and others, that this section is constitutionally invalid, and it is understood that the state government intends, as a result of this advice, to bring an action before the courts in order to establish that local government elections can in fact be held.
The history of the abolition of elected local authorities in Malaysia can be briefly stated. On March 1, 1965, local government elections were suspended across Malaysia pursuant to Emergency Regulations issued by the king as a result of the ‘Confrontation’ with Indonesia. This suspension was intended to be temporary, and the existing elected councillors were left in place until the Local Government (Temporary Provisions) Act 1973 terminated their terms of office and allowed their functions to be exercised by temporary boards of management appointed by the state government.
A permanent Local Government Act was eventually passed in 1976, which abolished the three (elected) city/municipal Councils, seven (elected or partially elected) district councils, 37 (unelected) town/rural boards and 289 (elected) local councils (for the New Villages) that had existed when local government elections were suspended in 1965 and replaced them with a uniform system of city/municipal councils and district councils.
The 1976 Act was enacted under Article 76 (4) of the federal constitution which enables Parliament to legislate on local government (which is normally a state matter under the Ninth Schedule) ‘for the purpose only of ensuring uniformity of law and policy’. Acts passed under Article 76 (4) are deemed to be federal laws rather than state laws, and have primacy over any state law in the event of conflict, pursuant to Article 75.
It has been argued by various commentators that s.15 (1) of the 1976 Act may be invalid, on three separate grounds. The first is not made by Yeo, but needs to be dealt with before we can address his two arguments. It is said that s. 15 (1) is unconstitutional because it was not genuinely ‘for the purpose only of ensuring uniformity of law and policy’. This argument can swiftly be put to rest.
We have already seen many different types of elected and unelected councils and boards exist in Malaysia before the 1976 Act was passed. Let me also enumerate the statutes under which they existed, and which were repealed by the 1976 Act: the Town Boards Enactment of the Federated Malay States, the Town Boards Enactment of Johore, the Town Boards Enactment of Terengganu, the Municipal Enactment of Kelantan, the Municipal Ordinance of the Straits Settlements and the Local Councils Ordinance 1952. It seems apparent that the 1976 Act falls squarely within the power of Parliament to legislate for the purpose stated in Article 76 (4), i.e. ensuring uniformity of law and policy.
Second, it is said that s. 15 (1) is unconstitutional because it conflicts with Article 113 (4), which provides that ‘Federal or State law may authorise the Election Commission to conduct elections other than [elections to the House of Representatives and State Legislative Assemblies]’. Although it is plain that Article 113 (4) is intended to cover local elections (and indeed used to refer to ‘elections to the municipal council of the federal capital’), it is not restricted to local elections, and local elections are not specifically authorised or specifically required.
However, it goes without saying that the federal or state law authorising the elections in question must be validly enacted and must fall within the legislative competence of Parliament or the state legislature. Thus, the state legislature could in theory authorise the Election Commission to conduct elections to the Islamic Affairs Council of the state, but it clearly could not authorise the Election Commission to conduct elections to the board of Bank Negara, which is a federal matter governed by a federal Act of Parliament.
In concurrent matters, and where Parliament is given the power to pass federal laws over matters in the State List, a state law would only be valid if there was no federal law with which it was in conflict, pursuant to Article 75. As was stated by the Federal Court in City Council of George Town v. Government of the State of Penang: ‘… a state law is invalidated to the extent of any inconsistency therein with a federal law, by article 75, notwithstanding even that the State law may be within the competency of the state legislature’.
That case concerned a conflict between the (federal) Local Government Elections Act 1960, which provided for elected local councils, and a state enactment and order that authorised and provided for the transfer of the functions of the elected City Council to the Chief Minister where it was deemed to be in the public interest. The state government’s arguments in support of its petition to dismiss the City Council’s suit were described by the Federal Court as ‘manifestly absurd’ and ‘frivolous and vexatious’.
As Parliament has (as I have argued above) validly enacted the 1976 Act pursuant to Article 76 (4), it necessarily follows that no state enactment past or present could validly make any provision that is contrary to the provisions of the Act. Section 10 of the 1976 Act provides for councillors to be appointed by the state authority. Local elections would only be possible if this section and s. 15 (1) could be dis-applied, such as by the state authority exempting the local authority area from the operation of any or all of the provisions of the act by a notification pursuant to s. 1 (4).
Whether or not this could be done without conflicting with policies adopted by the National Council on Local Government (NCLC), which are binding on the state government pursuant to Article 95A (5), is another question.
Third and finally, it is said that s. 15 (1) is invalid because it conflicts with the Local Government Elections Act 1960, which was revised in 1991 and therefore constitutes ‘the sole and only proper law in respect of matters included therein’ pursuant to s. 10 (2) of the Revision of Laws Act 1968. Sadly, even this ingenious argument fails. The question of whether s. 15 (1) has been impliedly repealed by the revised 1960 Act depends on whether it purports to deal with or conflicts with any matter included in the 1960 Act, which deals primarily with the constitution and administration of municipalities, town/rural boards and local councils, and the election of councillors for these local authorities.
As should be clear by now, town/rural boards and local councils were abolished by the 1976 Act and none now exist. ‘Local authority’ is defined in the act as ‘the council of any municipality to which a constitution has been granted or any town board or rural board to which a direction has been given under the Local Authorities Elections Ordinance 1950 [Ord. 52 of 1950], or this Act, or any local council to which a direction has been given under section 5A, as the case may be.’
It might be thought that the MPPP and MPSP would be caught by the term ‘municipality’. Unfortunately, ‘municipality’ is also a defined term in the Act, and means ‘a municipality created under the provisions of the Municipal Ordinance’, i.e. the Municipal Ordinance of the Straits Settlements, in force in Malacca and Penang and as extended to the Malay States, which was largely repealed by the 1973 and 1976 Acts.
It seems clear from a review of the 1976 Act and the state notifications that created the MPPP and the MPSP in Penang that all of the existing local authorities and local authority areas that exist in Malaysia today are completely new entities established under s. 3 of the Act, and none would fall within the definition of a ‘municipality’ in the 1960 Act.
Consequently, because the revised 1960 Act and the 1976 Act deal with completely different entities, there is no implied repeal because the two Acts deal with different matters and do not conflict: the 1976 Act governs the appointment of councillors to the existing local authorities, and the 1960 Act governs the election of councillors to local authorities that no longer exist.
In conclusion, ss. 10 & 15 of the 1976 Act are constitutional and govern the local authorities existing in Malaysia today. If state governments can find a way to exempt the local authorities in their states from the operation of ss. 10 & 15 of the 1976 Act without conflicting with the policies adopted by the NCLC, then there is nothing to stop them from enacting new elections enactments along the lines of the 1960 Act.
But in the meantime, it is the 1976 Act that applies to the existing local authorities, and not the revised 1960 Act, whose provisions are obsolete and spent.
