The Penang state government is still determined to reinstate local government election, however, the fly in the ointment is the differing opinions between its own panel of lawyers who have studied the case and that of the state legal advisor.

To resolve the matter, the state government is inviting the Election Commission (EC) to a ‘friendly' suit in court to determine the differing issues related to the matter.

NONE State exco for local government and traffic management Chow Kon Yeow ( left) said today that the two issues to be resolved involved the validity of Section 15(1) of the Local Government Act (LGA) 1976.

The other, he added, seeks answers to under which available law can the Election Commission hold local polls, since if there was a law on local elections, it was duty bound to conduct them.

Section 15 (1) of the LGA states, "Not withstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect".

"This would mean that the original Local Government Election (LGE) Act enacted in 1960 has been revoked and nullified," said Chow.

"However, our independent panel of lawyers, do not think this is constitutional since the LGE Act was revised on Sept 16, 1991; and a revised law is always a good law," he added.

High powered legal panel

Chow, who is also Tanjong parliamentarian, said since the opinions of the panel of lawyers differed from that of the state legal advisor, the state would refer the matter to the federal court.

"Since the matter only involved proper interpretation, neither will seek any cost," he told reporters at a press conference in Komtar today.

NONE He said he will be writing to the EC on behalf of Chief Minister Lim Guan Eng within two days to inform them about the detailed study submitted by the state's panel of lawyers represented by Yeoh Yang Poh, Tommy Thomas and Malik Imtiaz.

"We will let them know that our opinion is different from theirs; so we invite them to join us in a case to be referred to the federal court to resolve the issue," he said.

"We will then wait for EC's response, if we do not get a response from them, we will file the case on our own," he added.

Chow then related the differing views of the independent panel of lawyers and that of the state legal advisor, whose opinion is in line with the EC's.

State vs federal constitution debate continues

He said according to the lawyers, section 15 (1) of the 1976 LGA is "unconstitutional" because matters related to local government are under the jurisdiction of the state.

He added that the lawyers stated that Article 113 (4) of the federal constitution provides for local government election to be held and this constitutional right cannot be denied by any federal law.

The lawyers also stated that Parliament has no power to enact laws over local elections; that the Local Government Election Act of 1991 (revised) is "effective and enforced".

However, the state legal advisor refuted the opinion that Parliament cannot enact laws as it is provided in Article 76(4) of the federal constitution that the August house can enact state government laws.

According to the state legal advisor, the function of the election commission in Article 113(4) of the federal constitution is that it can conduct elections other than elections for parliamentary and state seats; therefore if there was a law on local government elections, the EC is duty bound to conduct it.

The state legal advisor is also of the opinion that Section 15(1) of the Local Government Act is constitutional; once it ceases to have effect, it amounts to revocation of the law, which means other laws (on local election) are nullified.