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  1. #1
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    Local Council Elections: Penang decides to proceed

    As it stands, this is merely a chess game between Penang and the Federal Govt. Lim Guan Eng knows full-well UMNO will not accept it which means SPR will not move, even if they wanted to. If he's really sincere, Guan Eng should implement the opinion poll method described below. SPR does not even need to get involved.

    http://tindakmalaysia.com/tm_forums2...pic,252.0.html

    Penang restores local council elections
    NEWS/COMMENTARIES

    Saturday, 06 March 2010 Super Admin

    (Bernama) - The state government has decided to hold elections to elect members of the Penang Municipal Council and Seberang Perai Municipal Council, Chief Minister Lim Guan Eng said.

    He said the state government had written a letter to the Election Commission (EC), empowering the commission to conduct the elections.

    Lim added that the local government elections were "to restore democracy in the local government and return power to the people".

    "After weighing the matter for quite sometime, the Penang executive council, in a meeting on Wednesday, decided to write a letter to the EC, empowering it to conduct the elections," he said after attending the 11th Penang Sports Club International Soccer 7s today.

    He said the move was in accordance with Article 113 (4) of the federal constitution which states that federal or state law may authorise the EC to conduct election other than parliamentary or state elections.

    Lim hoped that the EC would decide on the matter soon. Malaysiatoday....
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    Re: Local Council Elections: Now Selangor wants local council vote too

    Khalid also wants to play chess. These politicians think we are fools. They were given the method on how to overcome the restrictions of Local Govt Act on 31st Oct 2008 here - http://tindakmalaysia.com/tm_forums2...pic,252.0.html. Now they are just playing for time and positioning themselves in case a snap election is called. Cakap tak serupa bikin.

    Now Selangor wants local council vote too

    UPDATED

    By Neville Spykerman

    SHAH ALAM, March 7 — Selangor will write to the Election Commission on the possibility of restoring local government elections in the state, following the footsteps of fellow Pakatan Rakyat-ruled state, Penang.

    “We have already announced that we will be writing to the EC to determine what is their response to Penang’s call to hold local government elections.” said Selangor mentri besar Tan Sri Khalid Ibrahim (picture), referring to the sole election body in the country. TheMalaysiaInsider....
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    Re: Local Council Elections: Penang decides to proceed - Putrajaya not keen

    Take careful note of this:

    Local government elections were first held in 1951 before Merdeka but abolished in 1965 during the Confrontation with Indonesia.

    Then Prime Minister Tunku Abdul Rahman promised it would be restored after the situation improved.


    UMNO have a well-established record of breaking their promises. This is merely one of them.

    While things are still fresh in our minds, let us tabulate them:

    1. Local Council Elections, to be restored after end of Confrontation (1965)
    2. ISA to be used against communists only,
    3. NEP until 1990,


    Putrajaya not keen to restore third vote

    By Adib Zalkapli

    PUTRAJAYA, March 9 —The Federal government is not interested to restore the local council elections as it will not necessarily improve public services, said Datuk Seri Najib Razak.

    The Prime Minister was responding to the move by the Selangor and Penang governments to get the Election Commission (EC) to conduct local government elections in the two states.

    “We are of the opinion that the local government elections was abolished long time ago, so there is no need to restore it as it will create more politicking at the local level,” said Najib. TheMalaysiaInsider....
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    Re: Local Council Elections: Wong CH explains why SPR is not keen

    Wong Chin Huat's take if local govt elections are implement:

    1. ADUNs powers reduced. So Federal Govt will have to devolve power back to the States.
    2. Gerrymandering will be exposed.

    The Election Commission's secret
    29 Mar 10 : 8.00AM

    By Wong Chin Huat
    editor@thenutgraph.com


    Ballot box at the entrance of the Election Commission

    AS expected, the Election Commission (EC) said "no" to the idea of local elections mooted by the Penang and Selangor governments. Perhaps the EC is taking its cue from Prime Minister Datuk Seri Najib Razak, who is dead against "politicking", the derogatory term for political competition.

    I would argue that the EC actually has an institutional interest not to have local elections. Why? Because it would expose one aspect of their great disservice to Malaysia: gerrymandering. The Nut Graph....
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  5. #5
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    Re: Local Council Elections: Penang decides to proceed

    Long convoluted story. Bottom line: Local govt elections can be held but need to challenge Federal Govt in court 1st.

    Rising from the ashes: Local gov't polls in M'sia

    Yeo Yang Poh
    Jun 5, 10
    1:26pm

    The federal government would like to see local government elections dead and buried. Many NGOs and activists, and a handful of state governments, wish to witness the phoenix rising.

    This article presents the writer's views on the state of the law relating to local government elections in Malaysia. The desirability, or otherwise, of such elections, which has received much public debate, will not be dealt with here.

    This article will not canvass all the legal arguments that can be envisaged on the subject. Rather, it will focus on just a couple of the major arguments – those that the writer finds clear, indisputable or least controversial.

    It deliberately leaves out arguments that are debatable in nature, because the answer sought can already be found via those arguments that are crystal clear.

    Dead and buried

    Those who say that local government elections are no longer permitted by the existing law argue their position along the following lines:

    a) Since the coming into force of the Local Government Act 1976 (LGA), local councillors are to be appointed rather than elected, as required by Section 10 of the LGA. Section 15(1) of the LGA is crucial and central to their argument. It is worded as follows:

    “Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.”

    b) Section 15(1) is said to have the effect of abolishing and prohibiting local government elections. Therefore, the Local Government Elections Act 1960 (LGEA), which provides for local government elections, is said to be no longer effective, even though the LGEA has never been repealed. One might say that its operation has been “suspended”. Currently, it is argued, the law does not allow local government elections, because of the existence of Section 15(1).

    To the proponents of the above argument, the case is closed.

    But is it?

    Avoiding or opting out of Section 15(1)


    Many who hold opposing views have suggested that a state government could opt out of the application of Section 15(1) of the LGA and, after doing so, hold local government elections (by relying on the LGEA or otherwise).

    Their argument is as follows:

    a) Section 1(4) of the LGA provides that:

    “The State Authority may [notwithstanding that it had earlier adopted the Act or part thereof] 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 bylaws.”

    b) Therefore, it is argued that a state government can invoke Section 1(4) to bring itself out of the application of Section 15(1) and related provisions. After opting out, the obstacle for holding local government elections would have been removed, and the state government can then hold such elections.

    This approach appears simple. But it proceeds on the basis that Section 15(1) of the LGA is indeed the valid and current law on the matter of local government elections. If Section 15(1) is not the valid or applicable law on the matter, then there will be nothing to be opted out of.

    In my view, that is precisely the case, i.e. that Section 15(1) of the LGA is not the valid or applicable law on local government elections, for several reasons.

    I wish to presently discuss two of those reasons (and that which I consider clear and beyond question).

    What is the current applicable law on local government elections?

    Why LGA is invalid

    There are two main reasons why Section 15(1) of the LGA is invalid.

    The first reason is that Section 15(1) is unconstitutional and therefore void.

    The second reason is that the LGEA is, in fact, currently the applicable law on local government elections. I will explain.

    To recap, Section 15(1) states that: “Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.” Section 15(1) obviously has the intention and effect of prohibiting local government elections. That is where its problem lies.

    We have Article 113(4) in our Federal Constitution, which provides that: “Federal or State law may authorize the Election Commission to conduct [local government elections]”. What does this constitutional guarantee mean? It means the following:

    a) Local government elections are constitutionally permissible.

    b) Local government elections are mandated but are not mandatory.

    c) Local government elections cannot be prohibited altogether (short of an amendment to the Constitution), since any prohibition will have the effect of nullifying the constitutional intent of Article 113(4).

    Now, we have on the one hand Article 113(4) of the Federal Constitution that says that local government elections are permissible; and on the other hand Section 15(1) of the LGA that says that local government elections are impermissible. Section 15(1) is inconsistent with Article 113(4).

    Which will prevail?

    The answer is clear and simple. The Constitution prevails. Any statutory provision that is inconsistent with the Constitution will be void. This is a basic constitutional-law principle, and is also expressly stipulated in Article 4(1) of the Federal Constitution itself.

    I come to the second (and separate) main reason why Section 15(1) of the LGA is not the applicable law on local government elections.

    It is not disputed that, not only was the LGEA never repealed, it was in fact revised in 1991, pursuant to the Revision of Laws Act 1968. It became Act 473, with effect from 16 September 1991. This is a most significant fact, because of the legal effect of a revised law.

    Section 10(2) of the Revision of Laws Act 1968 provides as follows:

    “On and after the date from which a revised law comes into force, such revised law shall be deemed to be and shall be without any question whatsoever in all courts and for all purposes whatsoever the sole and only proper law in respect of matters included therein and in force on that date.” (emphasis mine)

    This means that the LGEA has, since 16/9/1991, unquestionably become, for all purposes, the sole and only proper law in relation to local government elections!

    The result is this. Apart from being unconstitutional and void, Section 15(1) of the LGA also cannot be the current applicable law relating to local government elections; because it is the revised LGEA that is (as from 16/9/1991) the “sole and only proper law” on local government elections. This must be so “for all purposes”, and beyond question by any court at that!

    Beyond doubt

    It is quite clear that:

    a) Section 15(1) of the LGA is unconstitutional and void; and

    b) In any event, the existing law concerning local government elections is in fact the LGEA 1960 (as revised in 1991), supported by the constitutional mandate and guarantee of Article 113(4) of the Federal Constitution.

    To me, this is not just arguably so. It is plainly so. It is so, beyond doubt.

    If the law were a science, or a mathematical formula, I would bet my life on the above analysis. But obviously the law is neither a science nor mathematics; therefore I shall not wager even a penny, for I am acutely aware that there is a huge gap between a legal opinion and a judicial pronouncement, at times bridged not entirely by meticulous analysis of sound legal principles.

    The challenging reality in today's Malaysia that confronts matters of this nature can sometimes mean that the argument of strength might overshadow or cloud the strength of argument.

    We will have to wait and see.


    YEO YANG POH, a senior lawyer, is a former chairperson of the Bar Council. Malaysiakini. Subscription required.
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    Penang passes local polls law


    Athi Shankar
    http://www.freemalaysiatoday.com/cat...cal-polls-law/

    May 9, 2012

    Local government elections must be held in Penang within 180 days from the day the enactment has been enforced.

    GEORGE TOWN: Penang Legislative Assembly has unanimously passed the Local Government Elections (Penang Island and Province Wellesley) Enactment 2012 here today.

    Hence, barring any legal challenges from the Barisan Nasional federal government or the Election Commission, local government elections must be held in Penang within 180 days from the day the enactment has been enforced.

    State executive councillor in charge of local government and traffic management affairs, Padang Kota assemblyman Chow Kon Yeow has said that the state government would attempt to obtain a pre-emptive court declaration that the enactment was not ultra vires the Federal Constitution to compel the EC to conduct the local polls.

    The bill was not opposed by the 11 Barisan Nasional opposition members from Umno, who were all not present in the House when it was passed. Neither were they in when the bill was up for debate in the first, second and third readings.

    With the legislation, the DAP-helmed Pakatan Rayat state government has taken a giant step forward to restore third vote process as promised during the last general election.

    When talking about the bill to the press after the opening of the party new state headquarters, Wisma DAP, Chief Minister Lim Guan Eng has that DAP also stood for ‘delivery as promised.’

    In his winding up debate on the enactment, Chow suggested for both the island and mainland councils – MPPP and MPSP – to be restructured, transformed and reformed to streamline the power dynamic between the state and federal government.

    “This would ensure the people benefitted whichever political alliance forms the federal or state government,” he told the House.

    DAP’s Komtar assemblyman Ng Wei Aik has suggested that the current RM1,300 allowance for municipal councillors was not proportionate with their heavy workload, responsibilities and high number of meetings.

    To this, Chow said that the state government hoped to fix a better rate to enable candidates elected to be full-time municipal councillors.

    On a question by DAP’s Jawi assemblyman Tan Beng Huat on why candidates needed to be locals, Chow explained that the state government wanted municipal councillors who knew well about local area’s “in-and-outs”
    Chow concurred with DAP’s Padang Lalang Tan Cheong Heng that the local government elections should be held despite the possibility of Pakatan not securing a 100 per cent victory.

    “It’s our stand to respect the spirit of the elections despite not being guaranteed of win every time,” he said.

    Progressive step

    Meanwhile, Suara Rakyat Malaysia (Suaram) said the enactment was a progressive step to pave way for the return of third vote.

    Its Penang branch coordinator Lee Hui Fei said the EC, which previously turned down Penang’s request for local elections, can no longer ignore and escape from its responsibility to administer elections.

    “The enactment removes questions on whether local elections can be held legally and constitutionally,” she said in an e-statement.

    Noting that the legal obstacles regarding a federal suspension since 1965 no longer applies for Penang, she stressed that the EC must respect the state’s right to exempt its local councils from the anti-democratic Section 15 of the Local Government Act 1976.

    “Suaram hopes that the EC would accede to Penang’s request,” insisted Lee.

    She said the Pakatan government should now intensify its commitment in the democratisation of local governments and empowerment of local communities.
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    All Pakatan states should hold local polls

    Athi Shankar
    | May 11, 2012
    http://www.freemalaysiatoday.com/cat...d-local-polls/

    If all Pakatan states held local polls, it will force the federal government to amend the Local Government Act (LGA) 1976 to allow the third vote, says an academic.

    GEORGE TOWN: All Pakatan Rakyat-ruled states should hold local government elections to prove that the coalition is serious about political reforms and transformation.

    Political commentator Sivamurugan Pandian from Universiti Sains Malaysia (USM) insisted that Pakatan states should hold respective local polls before the next general election.
    He said by holding council elections in its states, Pakatan could prove that it had fulfilled its 2008 general election promise.

    He was commenting on the enactment of the Local Government Elections (Penang Island and Province Wellesley) Enactment 2012 in the Penang Legislative Assembly on Wednesday.
    Hence, barring any legal challenges from the Barisan Nasional federal government or the Election Commission (EC), local government elections must be held in Penang within 180 days from the day of the enactment, which was passed unanimously.

    State executive councillor in charge of local government and traffic management affairs, Padang Kota assemblyman Chow Kon Yeow, said that the state government would attempt to obtain a pre-emptive court declaration that the enactment was not ultra vires of the Federal Constitution to compel the EC to conduct the local polls.

    Sivamurugan hoped that Pakatan states of Selangor, Kedah and Kelantan would emulate Penang by enacting a similar law to hold the municipality polls.

    He wondered why other Pakatan states had not been so enthusiastic to hold local polls.

    “Why has Kelantan never bothered to have the third vote despite being in power since 1990?

    “Are Kedah and Selangor comfortable with the autonomy to appoint their proxies in local councils?” asked the deputy dean of USM’s school of social sciences.

    It will apply pressure on federal govt

    He suggested that if all Pakatan states held local polls, it would force the federal government to amend the Local Government Act (LGA) 1976 to allow the third vote.

    The federal government suspended the local government polls since 1965 during the Indonesian Confrontation.

    Despite previous attempts by the DAP-helmed state government to restore the third vote, the EC had snubbed them by pointing to Section 15 of LGA76, which prohibited local government elections.

    Sivamurugan questioned why it took more than four years for the Pakatan state government to enact a law to hold local polls when many Penangites demanded it to be implemented much earlier.

    “DAP and Pakatan have to convince voters that it was not just another pre-election gimmick,” he said.

    He, however, welcomed the state government’s initiative to allow the people to take part actively in local democracy.

    “Hope we can have a vibrant local government elections for local residents to choose their local councillors,” he said.
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    1:54PM Apr 9, 2014'Parliament has no power to stop third vote'

    3
    Parliament has no power to pass provisions like Section 15 of the Local Government Act 1976, which prohibits local government elections, lawyer Tommy Thomas has argued.

    This is ultra vires (beyond the powers of) the federal constitution, which allows states to hold such elections, he submitted before a five-member Federal Court panel led by Court of Appeal president Justice Md Raus Sharif.

    Thomas (left) is representing the Penang government and former Aliran president P Ramakrishnan, the petitioner in this case, in seeking to compel the Election Commission to restore local government elections in the state.

    In 1965, prime minister Tunku Abdul Rahman Putra had temporarily suspended local government elections, due to the declaration of an Emergency during Indonesia’s ‘confrontation’ with Malaysia.

    “The ban still stands despite what was practised between 1951 and 1965,” Thomas said.

    In 2012, the Penang state legislative assembly passed the Local Government Elections (Penang Island and Province Wellesley) Enactment to revive the third vote, but has been stymied in its efforts to enforce it.

    The state government and Ramakrishnan are seeking a declaration that Section 10 and 15 of the Local Government Act are ultra vires the federal constitution in relation to the state government’s powers.

    Ramakrishnan (right) is further claiming that Section 15 deprives him of his right to liberty to vote in a local government election.

    The question of law, to be decided by the bench - also comprising Justices Suriyadi Halim Omar, Ahmad Maarop, Md Apandi Ali and Ramly Ali - is whether Parliament has the power to enact laws relating to local government elections.

    Tommy said federal law has to be challenged because local government elections are under the state government’s purview.

    He further said that an amendment to the Local Government Act in 1991 had appeared to back the reinstatement of the third vote, but that nothing has been done to date.

    Judgment deferred

    Senior federal counsel Alice Loke, representing the federal government and the EC, insisted Section 15 of the Local Government Act is valid.

    This, Loke said, is to provide uniformity of the law between the federal and state jurisdictions.

    She disagreed that a distinction should be made between local governments and local government elections.

    The hearing was initially fixed for the whole day. However, it appeared that the bench was hurrying Tommy through his submission.

    Justice Md Raus told him several times that the judges had read the submission and to deliver his arguments in point form, and “not to treat us as students and lecture us”.

    He then reserved the decision to another date.

    Penang Chief Minister Lim Guan Eng (left), who was present, said the state has a strong case.

    "For 50 years, we have been waiting to hold local government elections and to compel the EC to abide by our directive to hold this," Lim said.

    "In the ninth schedule of the Federal Constitution, under the state lists, it is within the powers of the state to hold local government elections."
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    Thursday, 10 April 2014 17:20


    SHIRKING ITS DUTY? Fed Court reserves judgment on Penang petition to restore local govt elections


    PUTRAJAYA - The Federal Court today reserved its judgment on a petition by the Penang state government and an individual to have local government elections restored after hearing submissions from all sides today.

    Federal Court judge Tan Sri Md Raus Sharif, who headed a five-man panel, said they would deliver a written judgment later.

    Besides the Penang government, the other applicant was P. Ramakrishnan, former president of the non-governmental organisation, Aliran. They filed the petition on July 27, last year, naming the Federal Government and the Election Commission as respondents.

    In the petition, the applicants are seeking to declare Section 15 of the Local Government Act 1976 invalid as they claimed that the section was void because Parliament acted beyond its powers under the Federal Constitution in enacting that provision.

    Earlier, counsel Tommy Thomas, who appeared for the applicants, submitted that the two terms – "local government" and "local government elections" – were entirely different pursuant to the State List which explicitly provided that the state was within its powers to enact laws on local government elections.

    He also said that under Article 76 (4) of the Federal Constitution, Parliament's power was limited in ensuring a uniformity of laws and policies, and the article did not deal with abolishing local government elections altogether.

    He further submitted that abolishing local government elections denied the constitutional rights of a citizen, including depriving them of their liberty, equality and freedom of speech under the Federal Constitution.

    Senior federal counsel Alice Loke, who represented the respondents, contended that the federal government had the power to enact Section 15 of the Local Government Act.

    The hearing of the petition followed the earlier decision of Federal Court judge Datuk Hasan Lah in granting leave to the state government and Ramakrishnan to proceed with the petition to challenge the validity of the provision in the Local Government Act 1976 which prevented state legislatures from providing for local government elections within their states.

    He allowed it on a sole legal question to be deliberated and decided by the Federal Court on whether Parliament has the power to enact laws relating to local government elections.

    The Pakatan Rakyat-led Penang government has been attempting to restore local government elections which were abolished on March 1, 1965. -Sundaily



    Full article: http://malaysia-chronicle.com/index....#ixzz2yUEaNB1p
    Follow us: @MsiaChronicle on Twitter
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    The Federal Court has dismissed the Penang government and former Aliran president P Ramakrishnan's application for local government elections to be held.

    The five-member bench led by Court of Appeal president Justice Md Raus Sharif dismissed the questions of law proposed.

    Penang Chief Minister Lim Guan Eng (right in photo) said he is disappointed with the decision but will abide by it.

    "I guess with this, the only way to bring the rights of the people to elect their local council members or mayors is by amending existing federal laws or we have a change of government," he added.

    The Federal Court in dismissing the application said Sections 10 and 15 of the Local Government Act 1976 which the plaintiffs are challenging are constitutional.

    Section 10 is regarding the appointment of councillors and mayors, while Section 15 is about holding local government elections, which has ceased to have effect.

    http://www.malaysiakini.com/news/271567​
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