Episode 19: Local Elections in Malaysia

In light of GE-15, the Consti Team examined the implementation of local elections in Malaysia. The article examines its constitutionality by looking through its historical background which was preceded by its eventual abolishment. The Consti Team also discusses its implications which brings up the question as to whether it is time to reintroduce local elections or if it is in fact necessary to maintain the current status quo of its abrogation.

1.0 INTRODUCTION

Following Undi18, the voting age was lowered to 18 years of age, in addition to the automatic voter registration being implemented. Many of our disenfranchised voters participated in the recent 15th General Election which has led to Malaysia progressing leaps and bounds into a more mature democracy. The question that remains is what’s next?

Well, the answer is local elections. Did you know that local elections were a feature of the past Malaysian democracy which was subsequently abolished? Why was it abolished and on what merits should or should not local elections be reintroduced in Malaysia? In this article, we will be dissecting the history of local elections in Malaysia as well as its abolishment and the pros and cons of local elections that need to be considered before reimplementing local elections into our current electoral framework.

1.1 LOCAL ELECTIONS: A BRIEF LOOK AT MALAYSIAN HISTORY

Local councils in Malaysia can be divided into three categories: city councils (such as Majlis Bandaraya Petaling Jaya), municipal councils (such as Majlis Perbandaran Klang) and district councils (such as Majlis Daerah Sabak Bernam). Generally, these local authorities depend on income from taxes, non-tax revenue and allocations from federal and state governments for their operation. All three types of local councils have the responsibility of providing basic infrastructure and public utilities. In addition, municipal and city councils provide for urban planning, public health and waste management while city councils further provide for revenue collection activities and law enforcement.[1]

In essence, local council elections are similar to elections held at the state and national levels, save for the fact that they are held to elect the local or municipal government. In Malaysia, local governments (which include municipalities, district councils, local councils and boards of municipal autonomy) operate as subordinate units to the state or federal government.[2] The core concept of a local government that is to be practised in Malaysia[3] may be summarised as follows:

1. Local government is responsible for local affairs such as building control inspection and regulation of new buildings, its administrative authorities in these matters are delegated to it by a higher government (state);

2. It is subordinate to federal or state governments and subject to control and regulation of the relevant superior government as provided by law;

3. It has limited autonomy (usually in respect of fiscal, functional and administrative powers), which it may exercise to the extent allowed that is provided by the federal or state government;

4. It may be either representative (elected) or non-representative (not elected) in character. Either way, it can still be vested with autonomy in financial, functional and administrative matters;

5. It is a separate legal entity from the superior government (state and federal) and other local government units and thus has the power to sue, be sued, enter into contractual agreements and own properties; and

6. It functions in a designated area and serves its inhabitants with services it is authorised to provide such as waste collection and disposal, licensing and management of local parks and playgrounds.

Local elections in Malaysia can be traced back to the (India) Act XXVII of 1856, which upheld the principle of elections and the necessity for an elected majority in the municipal council. Malaysian Parliament went on to pass several acts relating to local elections such as the Municipal Ordinance of 1913, the Local Authorities Elections Ordinance of 1950, and the Local Government Elections Act of 1960 (Revised 1961).[4]

George Town was reported to be the first city in Malaysia to hold an election in 1951, organised at the municipal level.[5] Nine councillors were elected, with an additional six appointed by the British High Commissioner. The George Town council later became a fully elected council in 1956 — the first in Malaysia. Five “wards” (constituencies) were created, each electing one councillor each year while the President was elected from and by the councillors themselves. With the granting of city status in January 1957, George Town became the only “city council” at the time.[6]

However, democracy at the local level in Malaysia was short-lived. Local elections scheduled for 1965 and 1966 were suspended following regulations by the federal government under the Emergency (Essential Powers) Act 1964, the reason being that it would be inappropriate to hold elections during the state of national emergency due to the Indonesia-Malaysia Confrontation, in addition to other factors.[7] This suspension remained in effect, and with further abolition of the 20 local councils in Malaysia at the time, marked the end of Malaysia’s adoption of the British form of local government.[8] It would seem that the abolition of local elections were in part due the existence of corruption and inefficiency of the local elective councils whose abolition allowed state authorities to expand their sphere of influence.[9] There were also claims of racial politics in addition to claims of undermining local opposition power by the Alliance Party at the time but these claims seemed unfounded and/or baseless.[10] Presently, by virtue of the Local Government Act 1976, as well as the laws of individual states, local government members are appointed by the respective state government.

1.2 SCRAPPED PLANS

Local elections were not re-established by the Pakatan Harapan government or the Perikatan Nasional government. In 2018, the then-Minister of Housing and Local Government Zuraida Kamaruddin said that local elections would be held within 3 years.[11] However, then Prime Minister Mahathir Mohamad shot down the proposal stating that local council elections may cause conflicts and racial strife, as well as urban and rural disparity, thereby halting and/or suspending plans for local council election by the Minister.[12]

Interesting to note, however, that the predecessor to the Pakatan Harapan (PH) coalition, the Pakatan Rakyat (PR) coalition, in their 2008 and 2013 manifestos had pledged to restore local council elections. Their successor, the Pakatan Harapan coalition, however, did not include this pledge. Instead, their pledge merely outlines that they intend to “strengthen local councils”. As per the 2018 Pakatan Harapan Manifesto; or more specifically, Promise 25 of the Manifesto, PH promises to strengthen the roles and powers of the local authorities.[13]

Subsequently, Pakatan Harapan was displaced by the Perikatan Nasional government.[14] On 17th of July 2020, Minister of Housing and Local Government Reezal Merican Naina Merican clarified that there were no plans by the Perikatan Nasional government to reintroduce local council elections as hosting one would cost the government a whooping RM302 million (not inclusive of hidden costs such as payments of wages to external agencies such as the police and RELA).[15]

1.3 LOCAL ELECTIONS IN OTHER COUNTRIES

Democracies differ in the manner in which electoral systems for local elections are conducted. For example, in the United Kingdom, councillors are elected via FPTP ( a winner-takes-all voting system where the candidate must win a plurality of the votes to win the Seat) in England, STV ( a system where voters cast a single vote in the form of a rank from their most preferred candidate to their least preferred candidate, and candidates who reach a certain threshold will be elected) in Scotland and Northern Ireland every year.[16]

This is to allow more responsiveness and accountability as councillors would have to listen to the needs and wants of the people they are representing.[17] The local elections were also held in conjunction with several other elections in 2021 such as the Scottish Parliament election and the Senedd Election which is the Welsh devolved Parliament on the 6th of May 2021.[18]

By holding elections simultaneously, it allows the UK to save costs by combining polling cards rather than separate cards for each election, local council staff becoming polling agents as well as having a singular ballot paper instead of multiple ballot papers to elect your representative.[19]

New Zealand holds their triennial elections for local elections on a fixed date to elect their mayors, councillors, etc.[20] Each council would decide on the type of voting method, whether postal or in-person, electoral system (FPTP or STV), the number of councillors, dedicated quotas for minorities (Maori, etc.) and the order of names in the voting document.[21]

2.0 THE NITTY GRITTY OF LOCAL ELECTIONS IN MALAYSIA

The constitution does designate Part VIII for elections, or more specifically General Elections. However, for elections among municipalities, the constitution is rather silent on this matter and this fact has been further aggravated following the Indonesian Confrontation in 1964 which has placed the issue of local elections on indefinite hold.[22] The suspension of the local election was also tied to how Malaysia would be negatively impacted if the bill proposed for the matter were to proceed.[23]

When Malaysia previously conducted local elections, the Local Government Act 1976 and the Local Government Elections Act 1960 have established certain rules governing the conduct of local elections. The case of Yap Choon Kong & Ors v. The Returning Officer Kluang & Ors [1962] 1 MLJ 19 can be quoted to provide an overview of how this legislation was administered. This case resolved a controversy over whether the persons who returned to certain wards in the Township of Kluang were duly elected. According to the ruling, any objections made in relation to the Council of Kluang must be founded on the justification set out in Regulation 11(1) of the Local Government Elections Act 1960. This particular instance demonstrates how local elections were held in the past before being abolished.

The practice of selecting local elected representatives began with the introduction of the Local Ordinance Act 1950. It was then followed by the Local Government Elections Act 1960 (henceforth known as ‘the Act) which came into force on 1st June 1960.[24] Currently, the process and implementation of local elections are only through the latter Act.

However, Local elections are currently suspended by the federal government due to the Indonesia-Malaysia confrontation and fears of a communist insurgency in the country. This has led to the prescription of a stronger state government as section 5A of the Act empowers the State Authority to directly appoint local councillors after consultation with the Election Commission. They are also responsible for electing members of the town and rural boards. Appointed councillors will be responsible for the administration of municipalities.[25] Though the Act does allow for local councillors to be either elected or appointed, elections are prohibited as mentioned earlier.

The abolition of local elections by the federal government has blurred the lines of the authoritative jurisdiction between federal and state governments. Item 4 of List II of the Ninth Schedule Malaysia Constitution states that local government outside the Federal Territories falls under the state responsibility which includes local administration, the municipal corporation and local government election itself.[26] The constitution states that local government is within state jurisdiction. Therefore, any law relating to local government is under state authority either to hold or execute the law.

Those who opposed this view are of the opinion that Item 6 (a) in the Federal List of Ninth Schedule asserts that “the machinery of government, subject to the State List, but including – (a) elections to both Houses of Parliament and the Legislative Assemblies of the States and all matters connected therewith”, implies that the Parliament had the power to enact laws which include the local government election law (i.e. government machinery is Election Commission to conduct election).[27] Furthermore, it is presented that by virtue of the Federal Constitution, state governments should comply with the federal authority.

Any efforts to reintroduce local elections are prima facie impeded by the Federal Court case of Government State of Penang & Anor v Government of Malaysia & Anor in which it was held that the state government has no jurisdiction to conduct local elections as it is inconsistent with the Federal Constitution.

However, there are still ways to reintroduce local elections. There are existing initiatives, albeit on a lower level of governance. Selangor had previously conducted a pilot project for Village Security and Development Committee chief election in three villages namely Kampung Baru Sungai Jarom, Kampung Baru Pandamaran and Kampung Bagan Pulau Ketam which was run by the local councils and district offices.[28] Parallel to this pilot project, the government has announced the new minimum standard for worker’s housing across Malaysia, titled the Employees’ Minimum Standards of Housing, Accommodations and Amenities (Accommodation and Centralised Accommodation) Regulations 2020.[29] Secondly, the Local Government Elections Act 1960 can be amended in which the wording ‘appoints’ be omitted, leaving election as the only option for local councillors. Hence, it is recommended that Federal-State cooperation should be encouraged to ensure that local elections be reimplemented.

3.0 THE IMPLICATIONS OF THE REINSTITUTION OF LOCAL ELECTIONS

LOCAL ELECTIONS: PROS /ADVANTAGES

i. Equal Participation and Representation

Local participation and representation via local elections would also aid in democratic practices in a nation by enabling fair participation in a nation's rule. However, the platform of local elections can be a possible route of opening room for merit in terms of participation instead of possible nepotism.[30] The United States becomes a fine depiction of this situation given it still practises local elections and hence it enables us to understand the importance of it in terms of ensuring that there is a representative of the people within the local stages. That is how it is often viewed in terms of minorities in the United States such as the Blacks and Hispanics when the question of local election arises. Hence why there are academicians who scrutinise the relationship and effectiveness of local elections towards minority groups in terms of seeing them get represented.[31]

The same can be said to be very relevant to another nation such as Malaysia which possesses a multiracial society as well. Note that it also enables the rendering of life to our constitutional concept housed under article 8(2) regarding equality in terms of race, gender, and religion[32] from a small basis of opening platforms for equal participation within the local context and upholding the concept of democracy by enabling elections on small scales for people’s need in choosing those who should be given the mandate to assist in administrative work.

ii. Accountability within Authorities towards Citizens

Local elections also ensure the responsibility of authorities for local affairs via the delegation of powers to them by the federal or state government.[33] Hence it opens doors to answerability if the elected authority fails to perform its duties which are owed to the people rather than having matters disregarded due to complex bureaucracy which may at times not involve the representatives of the people but rather those considered subsidiaries making the concept of accountability far-fetched to be raised.

Simplistically, there will be a sense of urgency to serve the community with an understanding that those in power were directly given the mandate to do so by the people themselves rather than being hired by someone of a higher chain of command.

iii. Decentralisation and Efficiency

A significant advantage is that if the local elections are brought about, we would display the ability for people to partake in the concept of decentralisation or monopoly given the fact they would be able to choose a form of self-government with internal experience rather than having to depend on authorities which are considerably far and involves bureaucracy[34] which creates difficulty for citizens given local authorities in Malaysia as of now are not directly from the people’s choosing.

Thus there would basically be an existing system where those in authority would be well versed with localised issues making them possibly efficient in handling concerns raised by the people well rather than depending on a higher chain of command which may be time-consuming and difficult to reach which is usually the case for a centralised authority figure.

LOCAL ELECTIONS: CONS/DISADVANTAGES

It is inevitable for local elections to be reimplemented to have some disadvantages since there is no perfect system in this world, and local elections are not an exception.

i. The Cost

First, the reinstitution of local elections would inadvertently lead to increased expenditure. As reiterated by the former Housing & Local Government Minister, Zuraida Kamaruddin, RM 308 million is required to realise local government elections among the 154 local councils available throughout the country (each allocated RM 2 million).[35] The aforementioned cost does not even factor in the hidden expenses such as the wages paid to the Police as well as RELA to aid in crowd control during the electoral process.[36]

In addition, we have to avoid wasting our finite financial reserves as even hosting the previous general elections has cost us approximately RM 1.1 billion due to UNDI18 and the automatic registration system being implemented.[37] Moreover, the current state of Malaysia’s economy does not look favourable, in concurrence with the projected global economic slowdown in 2023. The global economic downturn is also expected to hit major economic strongholds such as Europe, USA and China. Hence, we should be strategic in our expenditure and only spend when necessary. Local council elections, although ideal to further the march of democracy, are a luxury that we cannot afford for the time being.[38]

ii. Diseconomies of Scale

Local government elections may affect the quality of providing services to the public due to too much time and energy being concentrated on the process of election campaigns. Local government elections may dilute the quality and efficiency of services that are already being provided by the state government as much-needed time and resources are wasted during the campaign period. Former Housing and Local Government (KPKT) Minister Datuk Seri Reezal Merica Naina Merican reiterated that local governments could still deliver the best service despite not being elected democratically. Even if a council is democratically elected, there is no guarantee that there may be a substantial increase in the quality of service provided. [39] In short, what we need is not another unnecessary expenditure in the name of democracy but rather a mechanism to hold the current local council more accountable to provide them stronger incentives to strive to provide timely quality services. Why fix a system that is not broken?

iii. Low Turnout in Local Elections

In one of the countries that implemented this election system, the United States of America (USA), there has been an issue with the low turnout in local elections, in contrast with national elections. It was estimated that less than 30% of voting-age adults and less than 40% of registered voters participated in the elections based on a recent study.[40] Hence, people might not be aware of the elections which result in the disparity between the voter turnout for national and local elections. Besides, evidence has shown that the majority of those who go out to vote are homeowners rather than those in the lower income bracket, inter alia, low-income renters.[41] Hence, the poor and racial minorities are underrepresented in the electorates in local elections. It also would let interest groups and other high-demanders, such as public employee unions, to be in power. This led to a debate that is hard to resolve as there are two different ideologies coming from two different perspectives (namely, the liberals and conservatives). It is possible that if local elections are implemented in Malaysia, the same issue may arise as well.

4.0 CONCLUSION

In conclusion, reimplementing the system of local elections in Malaysia comes hand in hand with merits and demerits that ought to be considered. Local elections have in fact been successfully practised by numerous other Commonwealth countries, among them the United Kingdom, Australia and New Zealand. Malaysia can perhaps emulate these countries as a guideline on how local elections may be conducted if reimplementation is to be explored further, taking into account the status of our country as a Federation.

In any case, if we are to truly consider ourselves a nation boasting a mature democracy, the exercise of democratic rights must be implemented in every aspect of an election process - from the higher government level, ensured through the election of members of Parliament, all the way to the elections held to form subordinate levels of government such as the election of members of local councils through local elections. It is high time that local government elections are revived to ensure that we have local authorities that truly represent the people; who are attentive and responsible in addressing their needs and concerns.

REFERENCES

[1] Commonwealth Local Government Forum. (n.d.). Malaysia. Commonwealth Local Government Forum. Retrieved from <https://www.clgf.org.uk/regions/clgf-asia/malaysia/#:~:text=There%20are%20three%20types%20of,from%20federal%20and%20state%20governments.>. Site accessed on 15 Nov 2022.

[2] Nur Hairani Abd Rahman, Khairiah Salwa Mokhtar, & Muhammad Asri Mohd Ali. (2013). Reviving the Local Government Election in Malaysia? Global Journal of Business and Social Science Review, 1(4), 1, 2. Retrieved from <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001548>. Site accessed on 15 Nov 2022.

[3] Nahappan, A. (1968). Report Of The Royal Commission of Enquiry To Investigate Into The Workings of Local Authorities in West Malaysia. Kuala Lumpur. Retrieved from< https://newnaratif.com/wp-content/uploads/2018/07/Athi-Nahappan.pdf>. Site accessed on 15 Nov 2022.

[4] Arulthevan, Y., N. (2022, January 3). Local government elections vital for democracy. Institute of Strategic & International Studies (ISIS) Malaysia. Retrieved from <https://www.isis.org.my/2022/01/03/local-government-elections-vital-for-democracy/>. Site accessed on 15 Nov 2022.

[5] Saifuddin Abdullah. (n.d.). George Town: Malaysia’s first local democracy. Penang Institute. Retrieved from <https://penanginstitute.org/happenings/in-the-mass-media/913-george-town-malaysia-s-first-local-democracy/>. Site accessed on 15 Nov 2022.

[6] See footnote 4 above.

[7] Tennant, P. (1973). The Decline of Elective Local Government in Malaysia. Asian Survey, 13(4), 347, 348. Retrieved from <https://www.jstor.org/stable/2642925>. Site accessed on 15 Nov 2022.

[8] See footnote 7 above.

[9] See footnote 7 above.

[10] See footnote 7 above.

[11] The Sun Daily. (2018, May 26). Local council elections within 3 years, says Zuraida. The Sun Daily. Retrieved from <https://www.thesundaily.my/archive/local-council-elections-within-three-years-says-zuraida-KUARCH550494>. Site accessed on 15 Nov 2022.

[12] Babulal, V., Nuradzimmah Daim, & Arfa Yunus. (2020, July 14). Zuraida: Studies on introducing local council elections ongoing. The New Straits Times. Retrieved from <https://www.nst.com.my/news/politics/2020/07/608465/zuraida-studies-introducing-local-council-elections-ongoing>. Site accessed on 15 Nov 2022.

[13] Buku Harapan. (2018). Retrieved from https://dl.dapmalaysia.org/repository/Manifesto_PH_EN.pdf. Site accessed on 16

[14] See footnote 2 above.

[15] Liew, J. X. (2021, December 09). Too costly to hold local council elections, says Reezal Merican. The Star. Retrieved from <https://www.thestar.com.my/news/nation/2021/12/09/too-costly-to-hold-local-council-elections-says-reezal-merican>

[16] Government of the UK. (n.d.). Types of election, referendums, and who can vote. Retrieved from <https://www.gov.uk/elections-in-the-uk/local-government>. Site accessed on 17 Nov 2022.

[17] Paun, A., Hall, D., & Wilson, J. (2022, August 9). Local government. Retrieved from < https://www.instituteforgovernment.org.uk/explainers/local-government >. Site accessed on 17 Nov 2022.

[18] The Data Journalism Team. (2022, May 8). Election results 2022: How the parties performed in maps and charts. BBC News. Retrieved from < https://www.bbc.com/news/uk-politics-61344176 >. Site accessed on 17 Nov 2022.

[19] NALC. (2011, January). Local (Parish and Town) Council Elections Cost. Retrieved from https://www.nalc.gov.uk/library/our-work/create-a-council-resources/1362-local-parish-and-town-council-election-costs. Site accessed on 27 Nov 2022.

[20] Electoral Commission. (n.d.). What are local elections?. Retrieved from <https://elections.nz/democracy-in-nz/about-elections/what-are-local-elections/>. Site accessed on 18 Nov 2022.

[21] See footnote 7 above.

[22] Babulal, Nuradzimmah Daim, Arfa Yunus. (2020, Jul 14). Zuraida: Studies on introducing local council elections ongoing. New Straits Times. Retrieved from <https://www.nst.com.my/news/politics/2020/07/608465/zuraida-studies-introducing-local-council-elections-ongoing> . Site accessed on 6 Nov 2022.

[23] See footnote 1 above.

[24] Local Government Elections Act 1960 (Act 473) (Malaysia).

[25] Goh B.L. (2005). The Demise of Local Government Election and Urban Politics. Elections and Democracy in Malaysia. 49.

[26] Federal Constitution (Malaysia). Schedule Nine.

[27] See footnote 2 above.

[28] See footnote 4 above.

[29]Ayamany. (2020, May 27). Report: Selangor manufacturers start pilot project to centralise housing for foreign workers, builders eye budget hotels. Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2022/05/27/report-selangor-manufacturers-start-pilot-project-to-centralise-housing-for-foreign-workers-builders-eye-budget-hotels/9127>. Site accessed on 3 Dec 2022.

[30] Lijphart, A. (1997). Unequal Participation: Democracy’s Unresolved Dilemma. The American Political Science Review, 91(1), 1–14. Retrieved from. https://doi.org/10.2307/2952255. Site accessed on 24 Nov 2022.

[31] Welch, S. (1990). The Impact of At-Large Elections on the Representation of Blacks and Hispanics. The Journal of Politics. 52. Retrieved from (PDF) The Impact of At-Large Elections on the Representation of Blacks and Hispanics (researchgate.net). Site accessed on 23 Nov 2022.

[32] Federal Constitution (Malaysia) art 8(2).

[33] See footnote 2 above.

[34] Kaliuzhnyj, R.A, Bytyrin, Y.O & Shapenko, L.A. (2022). Advantages and Disadvantages of the Local Government Reform in Ukraine and Other Countries: A Comparative Legal Analysis. Studia Regionalne I Lokalne Nr. 2(88). Retrieved from Advantages and Disadvantages of the Local Government Reform in Ukraine and Other Countries: A Comparative Legal Analysis - Studia Regionalne i Lokalne - Issue 2(88) (2022) - CEJSH - Yadda (icm.edu.pl). Site accessed on 24 Nov 2022.

[35] See footnote 34 above.

[36]. (2022, September 25). Malaysia’s Next General Election to Cost Over RM1 Billion: Election Commission | The Straits Times. Retrieved from, <https://www.straitstimes.com/asia/se-asia/malaysias-next-general-election-to-cost-over-rm1b-election-commission> Site accessed on 20 Nov 2022.

[37] See footnote 36 above.

[38] Malaysia will not escape global slowdown in 2023, says Zafrul. (2022, September 21). The Edge Markets. Retrieved from, <http://www.theedgemarkets.com/article/malaysia-will-not-escape-global-slowdown-2023-says-zafrul> Site accessed on 20 Nov 2022.

[39] See footnote 38 above.

[40] Warshaw, C. (2019). Local Elections and Representation in the United States. Annual Review of Political Science, 22(1), 461–479. https://doi.org/10.1146/annurev-polisci-050317-071108. Site accessed 21 Nov 2022.

[41] See footnote 40 above.