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Thread: Local Council Elections: Penang decides to proceed

   
   
       
  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....
    py

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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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    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.
    py

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    Move for Pakatan states to file suit on local polls

    Move for Pakatan states to file suit on local polls

    Susan Loone
    Dec 8, 10
    11:40am

    Penang is planning to invite the other three Pakatan Rakyat states to join it in a suit to determine whether they have the constitutional right to hold local government elections.



    State exco member for local government, traffic management and environment Chow Kon Yeow said Penang, Kedah, Kelantan and Selangor can gain strength from one another's efforts in the matter by filing a joint suit.

    “We can file this suit straight to the Federal Court, bypassing the lower courts in compliance with Article 128 (of the federal constitution) which allows us to do so,” said Chow (left).

    However, this effort could lead to two possibilities, added Chow during his speech at the forum Rakyat Demands Electoral Reform organised by civil society organisations as part of the state's Local Democracy Week.

    If the Federal Court rules against the suit, legal opinion is it that the state can choose to opt out of certain sections of the Local Government Act (LGA) which it does not want, he explained.

    “Section 1(4) of the LGA says we can opt out of sections that we do not want to apply to us, but that is, of course, another legal battle to go through,” he cautioned.

    “However, if the ruling is for us, then we will direct the Election Commision to hold local government elections in Penang and other Pakatan states.”

    The initiative to file a suit came in the wake of the position of the Penang state legal adviser, who in conformity with the Election Commission and attorney-general, holds that the state has no power to conduct local elections.

    The state has already invited the Election Commission to jointly file a similar suit. However, it is almost certain that the commission will not agree to do so.

    As the state legal adviser is unable to represent Penang in the suit, the state has appointed its own panel of lawyers, headed by former Bar Council chairperson Yeoh Yang Poh, to follow up on the matter.

    'Pakatan's commitment to restore elections'

    Meanwhile, Chow revealed that before the last general election, the three Pakatan parties had different views about local elections.
    However, during the first Pakatan convention in 2008, PAS was “persuaded” to accept the DAP and PKR views on the matter.

    Chow said PAS was eventually willing to accept local council elections as this was a commitment that the parties made to the electorate during the 2008 election.

    “We have to see this through despite all the legal impediments that we have to face,” he said.

    Other than the Pakatan document that endorses local government elections, the recent summit between the Pakatan heads of governments agreed to pursue the matter.

    “Now, it is not only the DAP's or PKR's commitment but Pakatan's as a whole to restore this election; and since I am one of the leading figures in this matter, I have been asked, during a workshop for exco members from the various Pakatan states, to coordinate with the other states on the issue,” he said.

    On a related development, Chow said the state appreciated the initiative of local NGOs, which recently organised a mock-election to elect 10 nominees for the Penang and Seberang Perai municipal councils.

    However, he added, he was still waiting for the list of nominees from the organisers so that these people could be considered for the NGO quota for the two municipal councils. Malaysiakini. Subscription required.
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    Penang wants local council elections to be held

    This is mere posturing. If they are serious, use an Opinion Poll to select the local councillors.
    http://www.tindakmalaysia.com/showth...cal-Government


    The Penang government has instructed its state legal adviser to issue a gazette notification exempting local authorities in Penang from Section 15 of the Local Government Act 1976.

    Section 15 of the Act provides that all laws relating to local government elections are of no force and effect.

    Chief Minister Lim Guan Eng said this would be the prelude to the state seeking a court declaration to compel the Election Commission (EC) to conduct local government elections in Penang.

    Lim was responding to Housing and Local Government Minister Chor Chee Heung, who said yesterday that Penang should consult with the National Council on Local Government (NCLG) before issuing any such notification.

    "The minister should be fully aware that the state has already attempted to consult with the NCLG on the issue of restoring local government elections," Lim, who is also DAP secretary-general,
    said in a statement.

    "On March 24, 2010, I wrote to the EC asking it to conduct local government elections for the Penang and Seberang Perai municipal councils, but the former refused," he added.

    "On March 12, 2010, I wrote to the prime minister, offering to meet with him to discuss the state government's position, but again received no response," he said.

    No plan at all for local council elections

    Lim said on July 14, 2009, Penang state executive councillor Chow Kon Yeow wrote to Chor, who heads the NCLG secretariat, seeking local council elections, but was told that the federal government had no plan to reinstate this.

    A month later, the Penang legislative assembly passed a resolution calling on the federal authorities to take action to reinstate local government elections.

    Lim said Chow, who is also the MP for Tanjung, wrote another letter to Chor (right) on Aug 4 the same year, informing him about the state assembly resolution and urged Chor to table and discuss the matter at the 62nd NCLG meeting.

    However, in a letter dated Sept 14, 2009, the minister again refused to list the topic for discussion, Lim added.

    Meanwhile, a three-member legal panel retained by Penang gave its opinion that the state had the power to reintroduce local government elections.
    .
    The lawyers - Yeo Yang Poh, Tommy Thomas and Malik Imtiaz - had said that this was provided for under the 1960 Local Government Elections Act 1960 (revised 1991).

    Between 1951 and 1965, the country practised a system of local democracy where councillors were elected by residents in the locality they lived in, and this system has since been abolished.

    "The Penang legal adviser has been instructed to effect this gazette notification and also to issue a fiat appointing Thomas to represent the state in court," the statement by Lim said.

    "After the gazette notification, the state will refer this dispute with the EC to the courts."
    py

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    Is he sincere?

    Local elections: Let the courts decide

    Hawkeye
    | February 8, 2012
    Penang Chief Minister Lim Guan Eng says the courts must decide so that there will be no threats of legal action later on.


    GEORGE TOWN: Chief Minister Lim Guan Eng wants the courts to compel the Election Commission (EC) to conduct local government elections.
    He said holding local electiions must be done in a proper manner so that there will be no threat of legal action over the process.
    As Penang was the first state in the country to adopt local government elections, it should naturally be the first to revive it, Lim said in a recent interview.


    Lim said the country’s founding father Tunku Abdul Rahman was quoted as saying that such elections can be restored once emergency rule was over.


    The country is now relatively peaceful so it is with this best intention that the DAP-led state government is pushing for local government elections.


    Penang has appointed constitutional lawyer Tommy Thomas to spearhead a legal team to seek a court declaration for the restoration of local government elections despite objections from the EC and the Housing and Local Government Ministry.


    Lim said Thomas is passionate about Penang’s campaign but he has counselled that the best way forward is to compel the EC to conduct the electoral process.


    “There is no other convincing way other than to involve the EC.”


    Lim was commenting on a suggestion from some NGOs that the election process can continue if the state allows local community organisations and associations such as the Rukun Tetangga to nominate and elect the local councillors.


    The state would then just appoint those nominated after vetting the credentials of the candidates.


    Legal protection


    To this, Lim said the best way is to get legal protection and it can only be done with the involvement of the EC.


    If the state conducts local government elections without input from the EC, the decisions and choice of candidates can be legally challenged in courts since there is no validity, Lim explained.



    It is with this regard that the state has decided to pursue a legal recourse to revive the elections, he added.
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    Why waste time? Use the rate-payers roll and conduct an opinion poll on a list of local council candidates. The Chief Minister promise to abide by the outcome of the poll and appoint the local councillors accordingly. http://www.tindakmalaysia.com/thread...cal-Government

    Not perfect but a start to demonstrate sincerity. The current measure by the State Govt is just to kick the can down the road as their mandate expires in 12 months while their programme for implementation is 18 months away.

    Penang to table local gov't elections bill this month


    Susan Loone 8:29AM Apr 6, 2012

    The Penang administration will soon table a bill in the state legislative assembly to restore local government elections, said state executive councillor Chow Kon Yeow yesterday.

    Chow said the bill - the Enactment for Local Elections in Penang Island and Province Wellesley - will be tabled at this month's sitting which starts on April 30.

    In tabling the bill, Penang will be putting the state on a collision course with the federal government, which has argued that such an action is outside its jurisdiction.

    Chow contended that under the federal constitution, local government affairs are under the preview of the state administration.

    "Some quarters may have a different opinion about it, but we are using what has been provided under the constitution to enact a state law," he said at a press conference.

    "We are in the midst of finalising the draft bill. We shall organise a public forum before tabling the bill, and there would be a panel discussion to go through the draft bill," he stressed.

    In August 2009, the state moved a resolution in the Dewan Undangan Negeri calling on the federal government to bring back local government elections, and this was passed after some debate.

    The state government then engaged a team of lawyers to advise Penang on how to hold local elections in according to the provisions in the law.

    Chief Minister Lim Guan Eng had then written to the Election Commission (EC) in 2010 requesting for local elections, but the commission rejected the state's request, which resulted in the latter to institute legal proceedings.

    According to Chow, once the bill is passed, the issue will go to court. The state government will file a case to seek a judgment on whether the matter is ultra vires.

    He said the court would be asked to compel the EC to hold the elections if the decision is on "our side".

    "If it is not, then it is the end of the story. We will let the court decide," he added.

    First election in 18 months

    Based on the draft bill, the authority has to hold the first election within 18 months after the bill has been passed and gazetted. Local elections need to be held every three years.

    Each local government is allowed to elect not more than 50 councillors, including the mayor.

    However, there will be no direct voting for the mayor as the latter will pick his team from the elected councillors.

    Chow added the state legal advisor has already approved the English version of the draft bill, and that the national language version is being prepared.

    "The bill was drafted by modifying the 1960 Local Government Elections Act (federal law) and was adjusted according to the Penang context," Chow told reporters.

    "First we have to negate section 15 of the Act which nullifies all local government elections," he said.

    Section 15 of the Act states: "Not withstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect."

    State legal advisor Tommy Thomas (right) has suggested the state to issue a gazette notification exempting all the local authorities within Penang from applying section 15 of the Act.

    This would result in section 15 not being applicable in Penang and the first step towards seeking a court declaration to compel the EC to conduct the local elections.

    "So what comes after the exemption? The bill is the answer and we want to pass a law to hold local elections," he said.
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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.
    py

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