Penang Watch

Penang CM has announced that his government has written to the SPR/EC to organise elections for the 2 councils in the state-but has he taken note of the suggestion by Derek Fernandez below on how it could have been done? If he has not taken the step-then the announcement is just a cheap publicity stunt for the 2nd anniversary of the mar 8th tsunami!

Ong BK

Derek Fernandez: Local Elections Possible Without Federal Approval

Sunday, March 16, 2008 · 

(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.