By Himanshu Bhatt.

WHEN the Penang government took the country by surprise last week by asking the Election Commission (EC) to run elections in the state’s two municipal councils – something not seen in Malaysia for 45 years – all eyes inevitably turned to the prime minister for a response.

"Local council election," Datuk Seri Najib Razak told a packed news conference on Tuesday, "was abolished a long time back… So there is no need to revive it as it would place emphasis on politicking at the local government level."

Najib’s comment may have been blunt, but it was by no means conclusive. Note that he only said local government elections were unnecessary; there was no mention of it being impossible.

It has been widely thought that the Local Government Act (LGA) 1976 requiring councillors and presidents to be appointed was the nail in the coffin of Malaysia’s vibrant town and city elections. Section 15 of the LGA further dampened any hope of such elections with its provision: "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."

But what has eluded many is that on June 1, 1960, the Local Government Elections Act 1960 (LGEA) came into force. This Act has never been repealed; it continues to exist after being amended a few times.

Now an advocacy paper prepared by the Coalition for Good Governance (CGG) and commissioned by the Selangor government has in fact argued that the legal mechanism for local elections has merely been suspended and not removed.

One needs to have a glimpse of the history of our local elections to appreciate why the Penang and Selangor governments, as well as many civil society groups, want their return. Indeed, local elections were hit by their first major blow when they were suspended in Kuala Lumpur in 1959 and in the rest of the country in 1964 under a proclamation of emergency in the face of the Confrontation with Indonesia.

Till today, it is believed that the suspension was intended to prevent popular opposition parties from winning at the local government level. One may still remember the "local government tsunamis" that swept parts of the country, such as when the Socialist Front won control of the City Council of George Town in the 60s, while wresting local councils in towns like Jinjang, Serdang, Tanjung Sepat and Pengkalan Titi. The PPP meanwhile swept Perak even as its founder Datuk S.P. Seenivasagam was elected as president of the municipality of Ipoh in 1962.

The first experiment in elected representatives was way back in 1857 when three of five municipal commissioners for the George Town Municipal Commission were elected. This practice of having partially-elected municipal commissioners was abolished in 1913, only to be reintroduced in 1951 with nine out of the 15 commissioners being elected. And in 1956, George Town became the first local council in the country to have a fully elected council with the president elected from among the councillors.

In 1956, fears arose that the elections were being impeded when a "Royal Commission of Enquiry to Investigate the Workings of Local Authorities in West Malaysia" was set up amidst allegations of malpractice and abuse of power. Led by MIC deputy president Athi Nahappan, the it was meant to consider the usefulness of "the continued existence" of local authorities. Many opposition leaders saw the commission’s terms of reference as "a kind of death warrant to local authorities", the CGG paper notes.

But when published in Decem-ber 1968, the Athi Nahappan Report recommended that every state capital in West Malaysia be

administered by a local authority consisting of elected representatives. Unfortunately, the report was superseded by the Development Administration Unit Report in 1971 which effectively set aside its recommendations. And in 1976, the LGA was passed with its provision for the appointment of councillors.

What is interesting amidst all this is the CGG’s assertion that although the LGA superseded earlier legislation on local government, the LGEA 1960 has remained. In fact, the government continued to amend the LGEA from time to time – with the last revision as recently as September 1991. It has, however, never been repealed and remains in our statute books to this day.

"If local government elections have been done away with, why is the LGEA still in our statute books?" the CGG paper asks. "Why is it that as late as 1991 it was still the subject of legislative revision?"

"Would it not lead us to conclude that the LGEA is still very much alive? Is it not possible to posit the view that while local government elections may have been suspended for a time, the possibility of their return exists and lies in the hands of the state governments?"

A key perhaps is in section 76 of the Federal Constitution, which states that a law "shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State, and shall then be deemed to be state law and not a federal law".

This brings into question the LGA’s provision against elections and whether it can apply to a state despite the federal government’s emphasis that it is necessary for promoting "uniformity" among states. And hence the Penang gov-ernment’s crafty move to write to the EC to request that it run local elections there. "The ball," Chief Minister Lim Guan Eng has said, "is in the EC’s court." And it is a stroke that many legal observers keenly await.

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