Penang Watch

The Star
15 July 2009

Stumbling blocks to municipal polls
Reflecting on the Law
By SHAD SALEEM FARUQI

Local authority elections provide a suitable laboratory for testing
the principles of accountability, openness and transparency in
government. However, there are insurmountable legal hurdles.

EARLIER, it was Penang, and now Selangor is exploring the possibility
of having local authority elections. Commendable though this plan is,
there are two insurmountable legal hurdles.

Firstly, local government elections, last held in 1969, were abolished
by Section 15C of the Local Government Act 1976 and only the Federal
Government can restore them. Secondly, there is a federal emergency
law that puts the final nail in the coffin of democratic elections at
municipal level.

The legal position today is that local authority councillors, mayors
or presidents are appointed by state governments.

The State approves budgets; permits loans; has discretion over the
dismissal of departmental heads, deputies, mayors, presidents and
councillors.

It confirms by-laws and may delay revaluation.

If the mayor or president does not agree with the other councillors as
to the exercise of powers of the local authority, he shall refer the
matter to the Mentri Besar or Chief Minister of the State, whose
decision thereon shall be final and binding.

Despite this law, if any state government still wishes to promote
democracy at the third tier of our government, then one indirect way
would be to shortlist a number of respected individuals from NGOs and
representative groups; and hold a referendum or a public opinion poll
on which individuals are most acceptable as local authority
councillors.

At the moment no law permits or forbids a referendum.

Once the results of the referendum are known, then in accordance with
the Local Government Act, the state government can “appoint” as
councillors those chosen by the rakyat.

To further improve the democratic legitimacy of local authorities, a
number of other democratic measures could be adopted to improve
openness, accountability and integrity. They include:

> Enforce of section 23 of the Local Government Act 1976. The Act states that
“all meetings of the local authority shall be open to the public and to the
press unless the local authority by resolution at the meeting otherwise
decides”. Unfortunately many local councils resolve to exclude the public from
their meetings.

Other councils seek to defeat the law by holding closed-door
pre-council meetings prior to full board meetings. At the full board
meeting, councillors then agree to all decisions made earlier by the
various committees behind closed doors!

To facilitate public participation, council meetings should be
advertised and ratepayers should have the right to know in advance
what is on the agenda. The public and the press should not be excluded
from council meetings, except when clearly defined “exempted
information” is being discussed.

> Encourage consultative processes. As the influence of elected officials is
absent in the management of local government, it is imperative that consultation
with affected interests be encouraged. The law is supportive of such popular
participation in several areas. For example under section 142, citizens
aggrieved by a valuation have a right to make objections in writing and are
allowed an opportunity of being heard at the subsequent enquiry.

Under the Federal Territory Planning Act 1982, public participation in
development plans is provided for. Draft structure plans have to be
published in the Gazette and local newspapers.

Anyone who has objections to the plans has a right to be heard.

In fact, citizen involvement must be encouraged and facilitated at all
stages of the administrative process — issue identification, agenda
setting, policy formulation, policy adoption, and policy evaluation.

On most local government issues, the role of citizens’ groups is
discernible only at the last stage i.e. policy evaluation. The overall
decision-making model is elitist, not pluralist.

> Meeting the people. Presidents/mayors and their councils should have monthly
meet-the-people sessions during which questions should be answered, information
supplied and policies justified. In the past, Penang experimented with regular
meetings between citizens and councillors.

> Fiscal responsibility. The financial accountability of local authorities needs
to be improved. To achieve this end, a Local Government (Access to Information)
Act on the lines of the 1992 British legislation of the same name needs to be
enacted to enable the rate-payers to obtain more information on local authority
finances.

The Annual Reports of local authorities along with their audited
accounts should be made available to the public as is the practice in
many other bodies corporate.

> Assets disclosure. “Sunshine laws” should be enacted to require all
councillors to disclose their assets to the public. The law in sections 34 and
38 of the Local Government Act against vested interest by councillors should be
strengthened by maintaining a Councillors’ Private Interest Register on which
all councillors should be required to enter any direct personal or pecuniary
interest in council projects.

> Judicial control. Judicial review of local government expenditure should be
strengthened by adoption of the concept that a local authority is a trustee of
the ratepayers’ money. Under this principle, courts can intervene to invalidate
schemes and decision if they involve unwise, uneconomic or excessive use of the
ratepayers’ money: Roberts v Hopwood [1925] AC 578; Prescott v Birmingham [1955]
1 Ch. 210; Bromley LBC v GLC [1982] 2 WLR 62.

> Maladministration. A Local Government Ombudsman should be created to
investigate maladministration in local authorities. At present it is
constitutionally problematic for the federal Public Complaints Bureau to
investigate local authorities that are under the direct control of opposition
state governments.

> Law enforcement. The enforcement of the Local Government Act, Town and Country
Planning Act and Streets and Drainage Act should be improved. As long as the
enforcement of the law remains exclusively in the hands of officers of the
State, or the Attorney-General’s office, many wrongdoers will continue to go
scot-free.

The legal system must, therefore, seek to free law enforcement from
the exclusive clutches of administrators. Civic-minded citizens who go
to the court to enforce public rights or prevent public wrongs should
be treated as public benefactors and not busybodies.

Citizens’ groups should be allowed to bring “class actions” against
violators of the law.

The scope of the judicial order of Mandamus should be enlarged to
enable citizens to compel public authorities to enforce the law.

The rules of locus standi should be suitably relaxed to throw open the
judicial door to public-spirited citizens wishing to prevent a breach
of the law by a private citizen or a public authority.

In Malaysia in the decades since independence, the primary emphasis
was on efforts to achieve security, stability and economic prosperity.
These goals have been commendably achieved or are on the way to
achievement.

The new challenge is to improve accountability.

There is evidence that people’s expectations in this area have been
aroused.

The third tier of government provides a suitable laboratory for
testing the principles of accountability, openness and transparency in
government.

Professor Datuk Dr Shad Saleem Faruqi is Emeritus Professor of Law at
UiTM and Visiting Professor at USM.

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