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A Return to Real Democracy

If all politics is local, does the absence of local elections not make politics less than democratic?

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The current state of affairs, as mandated by the 1976 Local Government Act, is that local councillors are “to be appointed by the State Authority.”[1] A major consequence of the abolition of local elections and the (re)introduction of nominated local authorities is the blurring of boundaries between state and local authority, and the diminished role of the latter.

Although local councils are not technically departments of the state government, they have to obey state policies and their authority is subject to that of the state in many ways – even the renaming of roads requires state approval. Many services that were once provided by local authorities, such as public transportation and piped water, have now been outsourced to state, federal or private agencies; thus, not only are current local councils unelected, their powers are also greatly diminished when compared to the vibrant and autonomous George Town city council in its heyday.[2]


Federal Court: The Rejected Appeal

On May 9, 2012, the Pakatan Rakyat state government in Penang passed the Local Government Elections (Penang Island and Province Wellesley) Enactment, which reinstated local elections in Penang. Further to this, the Penang state government requested the Electoral Commission, the only body qualified to conduct elections in Malaysia, to hold these elections as was their right under Article 113(4) of the Federal Constitution.

The Electoral Commission, however, failed to respond to the request. The Penang state government therefore filed a petition to the Federal Court on June 27, 2013, asserting its right to reinstate local elections in Penang. Although a provision of the Local Government Act 1976 proscribed this, the Penang government argued that the Act was pro tanto unconstitutional.

On August 14, 2014, the Federal Court dismissed the Penang state government’s petition, deeming the latter’s 2012 Enactment void due to its violation of the Local Government Act 1976, which the Court upheld against the Penang state government’s challenge.

A telling feature of the Court’s ruling was its claim that “the 1976 Act is in line with the recommendations of the Athi Nahappan Report.”[3] This Report was the product of a three year (1965-1968) investigation into local government conducted by a Royal Commission of Inquiry led by Senator Athi Nahappan. Although it did suggest a streamlining of local laws, which was one of the stated purposes of the 1976 Act, it vigorously argued against the mere nomination of councillors, stressing instead the importance of elective local government.[4]

This particular recommendation was entirely ignored by the 1976 Act, Sections 10 and 15 of which abolished local elections and instituted nominated councillors. Thus it would be wrong to claim the Athi Nahappan Report’s support for the 1976 Act – if anything, the report would count in favour of the Penang state government’s case rather than that of the federal government.

The Federal Court’s ruling mirrors the federal government’s stance towards local government, although this was not explicitly given as a rationale in the Court’s judgement. It appears, then, that the federal government’s policy of centralisation has not abated since local elections were suspended in 1965 and abolished entirely in 1976. The federal desire to have a powerful, centrally controlled government is as strong as ever.


Why Bother with Local Elections?

First, they represent the policy of “no taxation without representation”. This is illustrated well by the case made by P. Ramakrishnan, the co-petitioner with the Penang state government in the 2013 appeal. In the words of the Federal Court ruling, Ramakrishnan claimed that “citizens like him also enjoy fundamental liberties … to exercise their democratic right by electing … leaders of local authorities who exercise sufficient power over the lives of the residents, and who have in their custody and control millions of ringgit paid as rates by such residents.”[5] As local councillors are the stewards of the taxpayers’ funds, taxpayers should have some measure of control over how said funds are spent and over who is in control of them. Having elections will thus provide a measure of accountability in government. Currently, such accountability does not exist at the local level.

Moreover, increased local democracy will boost the likelihood of better qualified local authorities. As the Coalition for Good Governance (CGG) wrote in a 2009 report: “Without elections, merits and competencies have given way to other considerations of the political parties’ agenda … appointments and positions [of local authorities] are closely tied to the parties in power and are often meant to serve as part of the patronage mechanism.”[6]

Tan Sri Wong Pow Nee, then Chief Minister of Penang, addressing the City Council's heads of Department at the takeover of the council by the state on July 2, 1966.

Tun Dr Lim Chong Eu. Local elections in George Town in 1951 witnessed a dramatic victory for the Penang Radical Party led by intellectuals and professionals like Lim.

In short, having elected councillors will rule out cronyism and party politics playing a role in the appointment of local authorities. After all, the primary purpose of local councils is not to act merely as an extension of the state government’s political agenda on the local level, but rather to serve the local community and ensure that the needs of people on the ground are being met. Having elections will help ascertain that local councillors are suited for the office, responsive to the demands of their constituents and chosen based on merit rather than party affiliation. The current system of nomination, especially as it is beholden to party politics and the interests of the state government, is not optimal for this purpose.

All this being said, local elections are not an end in themselves. If substantial autonomy is not devolved from the state to local authorities, local elections would serve merely to elect figureheads who would be powerless either to resist objectionable state policies or to generate and implement a grassroots agenda that reflects local aspirations and desires. Yet, as we have repeatedly seen, such devolution of power is unlikely as it runs counter to the federal desire to cement and centralise power.

A potential objection to increased local autonomy is that it will hamper administrative efficiency. After all, the George Town city council and the Penang state government were frequently at loggerheads in the 1960s as they were controlled by rival political parties. Were quasi-autonomous local authorities reintroduced, party tensions may inhibit the cooperation between state and local governments, preventing policies from being carried out smoothly. State-local conflicts, even if they occur, are indicators that state policy may oppose what locals in a particular area desire.

Queen Elizabeth II's visit to Penang in 1972. The subsequent passing of the Local Government Act four years later closed the curtains on an era of animated local democracy in Penang and throughout Malaysia.

Conflicts are thus preferable to a supine local authority that meekly obeys all the directives of the state government. Furthermore, policies that are unobstructed are not necessarily efficient; decisions made at the state level and implemented obediently on the local level can nevertheless be ill-conceived and sloppily executed. For example, the Highland Towers tragedy of 1993 (in which 48 people lost their lives when an apartment block collapsed) occurred because the local council in charge of authorising the construction of the Towers, Majlis Perbandaran Ampang Jaya, did not follow due procedure.[7] Having a local government that is not directly beholden to the state government can be an advantage, as it acts as a counterbalance to state policy and can prevent mismanagement from occurring unchecked.


Moving Forward

If a direct legal-constitutional approach will not work, as seen from the rejection of the Penang state government’s Federal Court appeal, the CGG has proposed a mockelection as an alternative in their report. They call it a “people-oriented selection process.” Rather than hold official local elections via the Election Commission, the state government can conduct popular nomination processes instead – members of the electorate are invited to vote for which candidates to nominate as councillors. The state government would then officially recognise the elected nominees by appointing them to the local

councils. This process is effectively a means of reintroducing local democracy while remaining legally within the bounds of the Local Government Act 1976.[8]

Having a local government that is not directly beholden to state government can be an advantage, as it acts as a counterbalance to state policy and can prevent mismanagement from occurring unchecked.

There are some challenges that need addressing. Because such a process would not be officially conducted or recognised by the Election Commission, there must be some alternative source of authority to ensure that the process attracts voters. The state government would thus have to take steps to educate voters and to encourage them to vote, as a high voter turnout will boost democratic legitimacy. The government must also commit to nominating the victors of the selection process in order to assure voters that the exercise is worthwhile.

Additionally, the state government should invite external organisations to monitor the process so that the voters know that their wishes are indeed being respected. As the state government would be the primary agent responsible for organising and implementing such a scheme, it is important that the political will is in place and that the government is committed to recognising the nominees chosen by the people, even if said nominees are from political parties opposed to the state government.

Furthermore, BN would be pressured to take part in these mock-elections or risk revealing their anti-democratic stance. There would be no good reason not to participate – the rakyat of Penang have clearly shown that they are in favour of it, as evidenced by the run-up to the Penang state government’s 2012 enactment, and there would no longer be a legal or constitutional obstacle to deal with. If BN parties choose to participate, these mock-elections would be further legitimised, perhaps paving the way for the federal government to reverse its stance against official local elections; if they do not, their indefensible opposition to local democracy will be made plain for all to see.

There is still a long way to go before a fully functioning local democracy can be restored to Malaysia. The first local election in Penang heralded the end of decolonisation and the beginning of a new democratic era 65 years ago. Now, decentralisation is the next major dimension of democratisation to aim for. Just as the holding of local elections was a key step in introducing democracy to our nation in in 1951, the restoration of local elections will be a significant milestone in ensuring that our democracy continues to flourish, thus ensuring a better Malaysia for all.

  • [1]Local Government Act 1976, section 10(1).
  • [2]Goh, Ban Lee. ‘Local Government in Urban Malaysia.’ Routledge Handbook of Contemporary Malaysia. Ed. Meredith L. Weiss. London: Routledge, 2014. 93–102.
  • [3]Sharif, Raus. Government State of Penang and Anor v Government of Malaysia and Anor. 2014. Web. 12 Sept. 2016. http://mltic.my/general/judgments/government-state-of-penang-andanor-v-government-of-malaysia-and-anor-MY10280.html.
  • [4]Report of the Royal Commission of Inquiry to Investigate into the Working of Local Authorities in West Malaysia. Kuala Lumpur: Government Printers, 1972. 99.
  • [5]Government State of Penang and Anor v Government of Malaysia and Anor.
  • [6]Khoo, Andrew Chin Hock, Chin Huat Wong, and Maria Chin Abdullah. An Advocacy Paper: Bring Back Local Government Elections. Coalition for Good Governance, 2009. 7.
  • [7]ibid, p.8
  • [8]ibid, p.22.
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