April 29, 2010

Locating the Demos in Democracy

Posted in Malaysia, Selangor, Tricia's Writings at 9:12 am by egalitaria

Hot off the press, the latest Penang Economic Monthly has my take on Local Council Elections. Go grab one off the stands today! 

Locating the Demos in Democracy

Local government elections were abolished by the Malaysian federal government in 1976 despite suggestions to the contrary by the body set up to study them. Thirty-five years later, the State governments of Penang and Selangor are asking for federal support in reintroducing them. If local councillors were elected instead of appointed, a mature electorate would be able to hold them accountable. 

Both the state governments and Penang and Selangor announced in March this year that they had written separate letters to the Election Commission asking for local government elections to be conducted in their respective states. Their reasons for doing so were to strengthen democracy by having local representatives elected and not appointed, as they are now. This would enhance accountability in public administration.

In an immediate reaction, Prime Minister Dato’ Seri Najib Razak rejected this, stating that such a move would not necessarily improve services to the people. According to him, local council elections would focus upon campaigning and politicking instead. If indeed “campaigning and politicking” are impediments to good governance, then by his very own argument both federal and state elections should equally be abolished in order for the executive to concentrate on “better service delivery”.

Local Government Elections: Looking Back

In fact, it is ironic for any party to vehemently oppose local government elections since although they may seem alien today, they were in fact a common enough practice of Malaya in the past. The first partial election was held in the Municipal Commission of George Town in 1857, but this was short-lived as they were abolished in 1913. It was only much later when the Local Authorities Election Ordinance of 1950 was enacted that allowed for local government elections, as well as participation of political parties.

Thus, the Municipal Council of George Town held its elections in 1951, but the more significant event was in 1952, when elections were held for first time for the Kuala Lumpur Municipal Council. As the capital of the Federation, this would set the trend for elections at the state and federal government levels at a later stage. Following Kuala Lumpur, local elections were then held in Kuantan, Kota Bahru, Seremban, Ipoh and Malacca all the way up to 1960. Such elections were the practice for representatives at city councils, municipal councils, town councils, town boards, rural district councils and local councils.

In 1960, jurisdiction over local government elections was transferred from the state governments to the Election Commission, meant to ensure independence and uniformity in its practice for the whole country. A year before that, local government elections were suspended on the grounds that the electoral rolls were “not ready” although critics have noted this was done to suppress the powers of the Opposition (the Socialist Front, made up of the Labour Party and Parti Rakyat) by the Alliance.

Local government elections were later suspended in 1965, with the reason that the country was under an emergency proclamation during the confrontation with Indonesia. This was provided for under the Emergency (Essential Powers) Act (1964)’s two regulations, namely the Emergency (Suspension of Local Government Elections) Regulations (1965) and the Emergency (Suspension of Local Government Elections) (Amendments) Regulations (1965). Again, the Opposition accused the government of repressing the people’s democratic rights, but then Prime Minister Tunku Abdul Rahman gave his assurance that it would be restored after the situation improved.

In fact, a 1965 Royal Commission of Enquiry to Investigate into the Workings of Local Authorities in West Malaysia clearly recommended that local authorities should be administered by elected representatives. This recommendation was conveniently ignored and it is worthy to note that then Prime Minister Abdul Razak stated that “it would be a waste of time, money and resources for elections to be conducted at this level”, an argument that sounds strangely familiar. Shortly after that of course, national security was in worse shape and the government did not try to revive local elections.

Legal Framework

 

The Election Commission responded to both the Penang and Selangor State Governments’ request to conduct local government elections with an 11-page letter. The argument made against local government elections is that the legislation does not permit its execution. It is therefore necessary to have a brief overview of the legal framework governing local councils.

The Local Government Elections Act 1960 provided for the election of members of local councils, and town and rural boards. Its role became irrelevant with the enactment of the Local Government Act 1976 – which legislates the running of local authorities – where section 15 now states that all provisions relating to local government elections shall cease to have effect. The Act’s Section 10 also states that local councillors are to be appointed by the State Authority. The Election Commission therefore concluded that for local elections to be conducted, sections 10 and 15 of the LGA would have to be amended first by Parliament. Nevertheless, it is interesting to note that the LGEA was never repealed and still exists as a statute.

The Election Commission also cited the Federal Constitution, where article 95A provides for a National Council for Local Government to formulate “a national policy for the promotion, development and control of local government throughout the Federation”. This National Council is currently chaired by the Deputy Prime Minister and its members include the Penang Chief Minister and Selangor Menteri Besar. In order for any policy or legal change to take place, it was argued that the National Council must first approve it. The Election Commission basically stated that conducting local government elections was not possible and absolved itself from any role or responsibility on the matter.

Despite these legal constraints, other parties opine that loopholes do exist for the restoration of local elections even without the approval of the Federal Government. The Coalition for Good Governance, for example, submitted a full paper to the Selangor State Government recommending the state to exercise the “opt-out” clause of the LGA, which the National Council on Local Government has never openly rejected or deleted. In addition, Article 113(4) of the Federal Constitution states that “Federal or State law may authorise the Election Commission to conduct elections…”. Some provisions do exist which are open to interpretation which should be explored further. For example, it is argued that Section 1 (4) of the LGA 1976 could be invoked to allow state governments to be exempted from Sections 10 and 15 and thereby restoring polls.

Other possible methods include the tabling of a private member’s bill in Parliament, or having the state legislative assembly pass a state enactment. These would however still require the Election Commission’s co-operation. The consensus among most parties is that such an exercise would ultimately have to be considered by the National Council on Local Government. The Penang State Government had in fact written to the National Council on Local Government to request that local government elections be considered as an agenda for discussion but this was rejected as it was apparently not advisable for local government elections to be conducted. Following this, Penang has set up an advisory committee to study legal obstacles of restoring local government elections, headed by former Bar Council president Yeo Yang Poh.  

Why All the Fuss?

 

Is all this much ado about nothing? Why bother changing a system, one may question. As it stands, the current practice in both Penang and Selangor is a formula that ensures representation by the ruling state government’s political parties as well as by professionals and non-governmental organisations (NGOs).

This has however been criticised as “crony-picking”, and calls have been made to publish transparently the criteria for selection of local councillors and their reappointment. If only friendly parties are appointed, how different then is the culture of Pakatan Rakyat compared with the old ways of Barisan Nasional, it is argued. Second, there is the danger of interference of workings between the state and local governments, most often political. This blurring of roles and responsibilities still takes place. Indeed, a reformist state should practise accountability and locally driven participation: empowering people through a bottom-up instead of a top-down approach.

Other countries have benefited greatly from local empowerment. India, Australia, the UK, Canada, and the United States practise local government elections, and enjoy tremendous local participation in decision-making where people determine the positions of those providing basic services for them. Likewise, Indonesia in its decentralisation policy beginning in 2001 started conducting local elections for mayors and district heads in 2005; local government performance has significantly improve as a result.

Malaysia makes itself an international fool by regressing on a global and regional trend of democratisation. Something as basic as having the right to choose for oneself the councillors deciding on neighbourhood roads, commercial development and waste collection should be a given, especially since these consume substantial amounts of tax-payers’ money.

The Pakatan Rakyat parties – more prominently Parti Keadilan Rakyat and the Democratic Action Party – have strongly advocated Local Government Elections in their manifestos, and leading up to the 2008 elections also signed up to Bersih’s (Coalition for Clean and Fair Elections) and the People’s Declaration which both promised local government elections.

It is a positive step taken by both the Penang and Selangor state governments, in requesting officially to the Election Commission for local elections. However, given the diametrically opposed political governments on either side of the Federal-State divide, it is highly unlikely that any “permission” will be granted even to study the possibility of conducting local elections.

Some problems are likely to surface if local government elections are brought back. These include high implementation costs, incomplete electoral rolls, and co-ordination. There may also be objections from political parties whose financial resources would be stretched for campaigning purposes, or NGOs who are unable to fund similar campaigns. In addition, the state government would take upon itself a risk of introducing potential opposition at the third tier of government, instead of appointing parties friendly to it (which it may need in the face of tremendous pressure from the Federal government, as is the case in Pakatan-run states currently). 

One possible development is to conduct a trial in a selected local council to gauge the feasibility for a similar exercise on a larger scale later.

In the final analysis, governments – both Federal and State – must remember that local government elections are possible and will only come about when there is actual and active political will. Local government elections if ever restored in the future will bring back local democracy to the people, with the very grassroots keeping in careful check and balance the actions of those they elect into power. To quote from the 1965 Royal Commission’s report, “democracy without efficiency is always more desirable and better than efficiency without democracy. In a journey towards attaining an efficient democracy, we should not allow the difficult terrain of the journey to discourage or divert us from striving to reach the goal.”

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