A Return to Real Democracy
If all politics is local, does the absence of local elections not make politics less than democratic?
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.” 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.
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.” 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.
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.” 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.”
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.
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
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.