Third vote conundrum

THE Penang government has started removing hurdles in the way of restoring local council elections, and its next stop could be the Federal Court.

Lawyers consulted by the state assert that local polls are possible because:

• The federal law which governs the polls was never abolished. This law is the Local Government Elections Act (LGEA) 1960, which the Election Commission (EC) claims has been repealed; and,

• Provisions in a newer law, the Local Government Act (LGA) 1976 which “replaced” the LGEA and outlaws local council elections, are unconstitutional. The provision concerned is Section 15(1) which states that other laws allowing the third vote shall cease to have effect.

Who is correct? Lawyers acting for the state, or the EC which says it cannot legally hold the third vote?

One option before the Penang executive council (exco) now is to get a Federal Court order declaring the LGEA valid, and Section 15(1) of the LGA void.

The exco is in the midst of deciding whether going to the Federal Court is the best path to take. The possibility that the court will reject its request is all too real, given its track record in deciding cases with political implications. Does Penang have other options?

A matter of interpretation?

Yeo Yang PohThe Penang government’s legal advisory committee appointed to study local council elections believes that the LGEA provisions are still alive. This is because the Act was revised in 1991, says former Bar Council president Yeo Yang Poh, who heads the committee. Law revisions are done by the Commissioner of Law Revision.

The LGEA was revised according to the Revisions of Law Act 1968, where Section 10(2) states: “On and after the date from which the revised law comes into force, such revised law shall be deemed to be and shall be without any question whatsoever in all courts and for all purposes whatsoever the sole and only proper law in respect of matters included therein and in force on that date.”

“The wording is clear to me, it’s not even an arguable point, that the LGEA is still a proper law governing local elections,” Yeo tells The Nut Graph in a phone interview.

As to the LGA, Yeo interprets Section 15(1) of this Act as unconstitutional because it contradicts Article 113(4) of the Federal Constitution. This article allows states to request the EC to conduct elections other than state or parliamentary polls.

Further, the LGA has another section, 1(4), which allows states to exempt themselves from restrictions within the same Act regarding local polls.

Yeo says instead of going to court directly, another option is to write to the federal government and the EC for their position on the LGEA’s revision in 1991. Whether this Act is still valid, or whether it has been repealed as the EC claims, hinges on how the Revisions of Law Act is understood.

“The state could ask the EC whether it agrees with this view before proceeding to the Federal Court. However, the reality is that we expect the government’s answer to be ‘no’,” he adds.

EC chairperson Tan Sri Abdul Aziz Yusof says he was advised by the Attorney-General’s Chambers that the LGEA is a repealed law. “As far as the AG’s advice goes, we are to look to the newer law (LGA) which states that councillors are to be appointed,” he tells The Nut Graph by phone.

Mock or not?

Going to court may or may not be futile, but that’s where the matter would probably wind up eventually. The EC could keep on rejecting requests to conduct local polls, and there would be little states could do since the commission is the only body constitutionally empowered to conduct elections. A court ruling that upholds the LGEA’s validity is seen as the only way to compel the commission.

Some activists suggest Penang should attempt a mock election (© Goh PS | Wiki Commons)

That aside, democracy activists feel Penang should attempt a mock election. Suaram Penang Coordinator Ong Jing Cheng tells The Nut Graph the state could choose councillors from among the election winners, so as not to flout the law requiring councillors to be appointed.

“Perak village heads were elected under the Pakatan Rakyat (PR) state government, so a similar exercise can be done in Penang,” Ong says in a phone interview.

Whether mock elections held by the state are legal since only the EC is empowered to conduct voting, Ong feels it is more necessary for PR to prove its sincerity about democratic reforms.

“Whether the legality of a mock election is questioned, it is a good exercise for PR if they one day take over the federal government. They can convince people that they have experience in conducting local elections.

“We have suggested before that the Penang government do studies, costing, and public education to prepare for a mock poll, but this has not been taken up,” Ong says.

Walking the talk

Lim Guan Eng (file pic)

Chief Minister Lim Guan Eng prefers testing the Federal Court on this issue. “The state cannot go ahead on its own or draw up its own rules on conducting local government elections. It has to be the EC, [and should they refuse] that is why we need a court declaration.

“[But] it has to be a collective decision [by the exco]. When we decide, we must do so in the interest of the state and so that it won’t affect the authority of the local councils. We also have to think this through carefully as we don’t want our decision to be disputed and ultimately rejected by the court, making all our efforts in time and money in vain,” Lim tells The Nut Graph in a phone interview.

The realpolitik of having local council polls is a consideration, too. Among the PR parties, DAP has been the most strident in calling for the third vote. Objections have come mostly from quarters in PAS concerned about the loss of Malay Malaysian strength in urban local councils.

However, Lim dismisses such fears. “[Local councils] are subsets of all state seats within parliamentary seats. In Penang, the two councils, Majlis Perbandaran Pulau Pinang and Majlis Perbandaran Seberang Prai, are inclusive of all the state seats within. So [there] will be [representation] of the [Malay Malaysian] population,” he says.

The state government’s loss of control over local councils is also a reality that has to be dealt with, Lim adds. “If we want to cling to power, why should we agree to hold local government elections? We might as well retain our complete monopoly so that only PR representatives are appointed. This is a sacrifice in authority and power that we are making in the larger interest of democracy.”

For civil rights activists like Suaram, such assurances are not enough. “It’s for PR to convince the people that they are sincere. We want to see how far the state government will go to empower people,” says Ong.

And so, between the law, activism and political reality, Penang under PR must decide how best to fulfil its 2008 election promise within the limits placed by federal government.

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