Sun : Local govt elections without federal approval

http://www.malaysia-today.net/2008/content/view/4327/37/

(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.