The Federal Court has dismissed the Penang government and former Aliran president P Ramakrishnan's application to hold local government elections.

 

This is despite the Penang government had passed a legislation in 2012 called Local Government Elections (Penang Island and Province Wellesly) Enactment.

 

The five-member bench led by Court of Appeal president Justice Md Raus Sharif ( left ) dismissed the questions of law proposed as he read out the summary judgment.

 

The Federal Court in dismissing the application said Sections 10 and 15 of the Local Government Act 1976 which the plaintiffs are challenging, are constitutional.

 

Section 10 is regarding the appointment of councillors and mayors, while Section 15 is about holding local government elections, which has ceased to have effect.

 

Justice Md Raus said Parliament had enacted both sections under powers of Article 76 (4) of the Federal Constitution for the purpose of uniformity of law and policy related to local government, that includes local government elections.

 

He further added that although local government elections are not expressly provided under Article 76 (4) of the Federal Constitution, the term ‘local government’ under the Article cover local government elections.

 

“The local government elections cannot be viewed in isolation (of Article 76) as the local government elections relate to local government itself. The Federal Court was fortified in coming to this conclusion based on the test that the law passed by the Parliament is to ensure uniformity of law and policy,” he said.

 

Penang exceeded its jurisdiction

 

Justice Md Raus also ruled the Penang government exceeded its jurisdiction in wanting an exemption order of Section 15 barring local government elections, by passing the enactment.

 

“The Federal Court held the Penang state government cannot unilaterally exempt the application of Section 15 of the Act to the whole of Penang as it is in violation of Article 95A (6) and (7) of the Federal Constitution.

 

“The court also ruled the state enactment is ultra vires (beyond the powers) of Article 75 of the Federal Constitution as it is inconsistent with Section 10 and 15 of the federal law. A state law is invalidated to the extent of any inconsistency with federal law,” he said.

 

Counsel for the Penang government and Ramakrishnan, Tommy Thomas had submitted that Parliament had no right to deny the people to exercise their third vote.

 

Article 95 A (6) relates to the duty of the federal and state government to consult with the national council for local government, in respect of any proposed legislation dealing with local government and it shall be the duty of the council to advise those governments on such matters.

While (7) concerns to the federal or state government may consult the council in respect of any other matter relating to local government and it shall be the duty of the council to advise the government on such matters.

 

Sitting with Justice Md Raus were Federal Court Justices Suriyadi Halim Omar, Ahmad Ma'arop, Md Apandi Ali and Ramly Ali.

 

No order was made as to costs.

 

'Court denies third vote '

 

Penang Chief Minister Lim Guan Eng  said he was disappointed with the decision but will abide by it.

 

"I guess with this, the only way to bring the rights of the people to elect their local council members or mayors is by amending existing federal laws or we have a change of government," he added.

 

“The Penang government wanted to give this democratic right back to the people to elect their local councillors and mayors but the decision by the highest court is denying this.

"This is a sad day as we have fought mightily against the federal government in giving this right back to the people,” said Guan Eng ( right in photo ).

 

Local government elections were once allowed as early as in 1951 in Penang but this was later prohibited following several emergencies proclaimed.

 

Lim said they wanted to bring back what had been practised by Malaya 50 years ago and now it would be a good time for this as the public has the right to say how their assessment rates should be spent.

 

Asked what would happen with the state enactment, that was passed, he said the decision renders it irrelevant.

 

Following the passing of the enactment, the Penang government had written to the Election Commission for help in conducting in local government elections. There was no reply, thus resulting in this application.

 

Ramakrishnan said the decision today was expected as the judges had hurried the submission of their lawyers.

 

Senior federal counsel Alice Loke appeared for the federal government.