Derek Fernandez: Local Elections Possible Without Federal Approval

From Malaysiatoday.

(THE SUN) – There are loopholes in the law which can enable state governments to introduce local government elections without the approval of the federal government.


Planning lawyer Derek Fernandez said state governments may invoke Section 1(4) of the Local Government Act 1976, which states: “The State Authority may … by notification in the Gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any by-law.”


Fernandez said publishing a notification in a state gazette therefore exempts the state government from applying Section 15 (1) of the Local Government Act (provision which enabled the state to bring an end to local government elections) to the area of the local authority.


“After this is done, the state government can then invoke Article 113(4) of the Federal Constitution which states that federal or state law may authorise the Election Commission to conduct elections other than those referred to in Clause (1) {House of Representatives and the Legislative Assemblies of the States}, and pass a state law for local government elections,” he said.


Alternatively Section 5 (1) of the Local Government Elections Act 1960 may be invoked, Fernandez said.


The section states that “notwithstanding anything to the contrary contained in any written law which relates to Town Boards or Rural Boards in force in any State, the State Authority may, after consultation with the Election Commission in respect of the boundaries of the local area and the number of Councillors to be elected … by order published in the Gazette of the State, direct that the whole or a majority of the members of a Town Council, Town Board or Rural Board established in the State under any such written law shall be elected instead of appoint-ed or nominated by the State Authority …”


Fernandez said one has to choose between the two methods available to avoid a clash between the laws, adding that the introduction of local government should be handled in two stages. “Stage one should be to appoint new councillors without political affiliations under the criteria in Section 10 of the 1976 Act, while the mayor or president should be retained so as not to disrupt the transition process, unless he is really unfit.


“Stage two should involve holding elections to select the councillors, while the mayor or president can be appointed from a competent administrator.”


The issue has become a hot topic of debate after many opposition party candidates promised to resurrect local government elections, in the interest of transparency and accountability in public spending by local authorities, if they came into power.


To realise this objective however, the federal government would have to endorse the amendment of Section 15 of the 1976 Act.


3 responses to “Derek Fernandez: Local Elections Possible Without Federal Approval

  1. Section 1 (4)
    -For a law to be enforced, the time frame or schedule is normally stipulated in the first few sections.
    So, should Section 1 (4) be considered as such? And any “exemption” should carried also a time frame? And, surely not be something free in the air for more than 30years!

    NST has a rebut by Roger Tan – another Lawyer
    where State Law cannot be inconsistent with Federal.
    “In other words, a state authority may suspend the application of Sections 10 and 15 of Act 171 and then cause the state legislature to enact laws governing elections for those local authority areas.

    However, to enact state laws governing local government elections might still technically conflict with Sections 10 and 15(1) of Act 171 and the 1965 Emergency Regulations (presumably still in force).

    As Act 171 is a federal law made under Article 76(4) and not under Article 76(3) of the Federal Constitution, which deems laws passed by Federal Parliament as state laws, it follows that Article 75 of the Constitution provides that if any state law is inconsistent with a federal law (Act 171 and the emergency laws), the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.”
    – The Gazette herein, should be referred as Federal!!

    Section 5 (1)
    Is the EC (Election Commission) also Federal? for the Delineation of Constituency?

    As per
    EC is under provision of Federal Law
    “For reference, Article 113(1) reads:

    There shall be an Election Commission, to be constituted in accordance with Article 114, which, subject to the provisions of federal law, shall conduct elections to the House of Representatives and the Legislative Assemblies of the States and prepare and revise electoral rolls for such elections”

    If court is still under Federal & Bias, even it is a Chance but still subjected to Challenge, any chance of Success?

    The most practical, is under whose payroll, those Councilors are being paid?
    Under the State or Federal?
    Or if they can be suspended by Penal Code if they failed the job?
    Anyway, if Court is BIAS, NO SHOW by State Government! Especially if ACA and Police are under Federal and not the State!


  2. Roger Tan, a member of the steering committee of legislative drafting of the Ministry of Housing and Local Government.

    Should he be responsible for bringing three ACTs into Housing (Housing Developer Act, Strata Title Act, Building Common Property Maintenance & Management Act(2006)) into Malaysia instead of one as being use in Singapore since 2004?
    “Building Maintenance and Strata Management Act 2004″

    With Amendments after Amendments putting more loopholes into the Housing Industry?
    And cannot even synchronize Purchaser with Proprietor, Sinking Fund with Special Accounts, Service Charge and Contribution?
    Purchaser has obligation to pay management fee but no Rights of Voting until being able to registered as “Proprietor”?
    Compelling Purchasers to take Developer into Joint-Management when the Freedom of Choice of Management by the Purchasers is abused!
    and more loopholes to relax the Obligations of Developer and the Authority!

  3. all derek does for the residents in petaling jaya is to make their life harder.

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