The appointment and termination of a municipal councillor is governed by the Local Government Act 1976. Section 10 of the Local Government Act 1976 states that the state authority and not any individual has the power to appoint or revoke the appointment of councillors.

Such a decision must be taken by a majority of the exco and consented to by the ruler. The state authority is defined under the law as the ruler in council, council being the state executive council. The Local Government Act 1976 requires that the local authority must consist of a minimum of eight councillors and the mayor or yang di-pertua.

While Section 10(4) of the Local Government Act 1976 provides for the revocation of the appointment of a councillor, the Act is silent as to the circumstances for revocation. This is not unusual in acts of Parliament and as such the exercise of this power will be governed by the common law.

The common law states that a statutory discretion however wide such as a power to revoke an appointment is not unfettered but must be exercised based on relevant considerations and reasonableness.

Because councillors are statutory appointees for a fixed term and are under the Local Government Act 1976 eligible for reappointment at the end of their term and are given the same protection against liability as are government servants under the Public Authorities Protection Act 1948, it is arguable that nothing short of misconduct amounting to dereliction of duty would warrant a premature revocation of a councillors’ appointment.

Unlike exco members who serve at the pleasure of the ruler which is stated in the state constitution, councillors appointed under the Local Government Act 1976 do not strictly serve at the pleasure of the state as the Local Government Act 1976 does not use these words unlike the state constitution.

This being so it is my opinion that the power to revoke a councillor’s appointment prematurely must be exercised on the basis of at the very least proven misconduct warranting termination of appointment. Such an allegation would have to be determined in accordance with the rules of natural justice, with the right of the affected councillors to be heard and answer any allegations being made.

DEREK FERNANDEZ is an advocate and solicitor and former chairperson of the MBPJ Green Building Committee.