A SENIOR official of a local authority said our Local Government Act 1976 (usually referred to as “Act 171”) is out of date, if not altogether obsolete in this “age of transformation” currently sweeping across the nation.
I listened to him as he gave his reasons at a discourse organised by a former colleague of mine at a hotel in Kuala Lumpur recently. Other participants at the event (many of whom hold senior positions at local authorities in Selangor and Johor) expressed their agreement and offered concrete examples of the shortcomings in that 40-year old law.
Act 171 (which applies to Peninsular Malaysia only) was passed by Parliament under Article 76(4) of the Federal Constitution to ensure uniformity of the law “relating to local government” in the nine Malay States, Penang and Malacca.
This was done because local government is under the jurisdiction of the state, according to Schedule Nine, List II of the Federal Constitution. Since Act 171 came into force, it had been amended four times — by Act A436 (in 1978), Act A564 (in 1986), Act A806 (in 1991), and Act A865 (in 1994) — but none of these brought about any major reforms in the law.
Over the past four decades Act 171 has remained in its original form, containing 166 sections and two Schedules spread out in 16 Parts. In 1988, Part X was repealed when the Fire Services Act 1988 (Act 341) came into force.
A state authority has absolute power under Act 171 to declare any area in the state to be a local authority, assigning a name to it, defining its boundaries and determining its status (Section 3), merging two or more local authorities (Section 5), issuing directions of a general character (Section 9), and appointing mayors or presidents and local councilors (Section 10).
What distinguishes a local authority from the federal authority and the state authority is there is no election for local authorities in Malaysia, because Section 15 of Act 171 clearly 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”.
In 2010 the Penang government passed the Local Government Elections (Penang Island and Province Wellesley) Enactment, but nothing more has been heard since.
Modernisation of local government law has taken place in many foreign jurisdictions. If our legislators need any inspiration to initiate reforms affecting Act 171, they can take a close look at the New Zealand’s Local Government Act 2002 and its Local Government (Rating) Act of the same year.
South Australia has rejuvenated its Local Government Act 1999 with the passing of the Local Government (Financial Management) Regulations 2011 and the Local Government (General) Regulations 2013.
In the United Kingdom, modernisation had taken place under its Local Government Act 2000, effectively repealing its earlier legislation in the 70s and 80s. I find it extremely exhilarating to read (in its Section 2) that every local authority in the UK has “the power” to promote the economic, social and environmental “well-being” of the area under its jurisdiction. Part IV of the Act contains provisions relating to local elections.
In Mauritius, its earlier Local Government Act of 1989 has been repealed and replaced by the Local Government Act of 2011. Kenya has consistently revamped its earlier law (passed in 1963) from time to time and recently under the revised Local Government Act of 2010. In India, Punjab has done it under its Local Government Ordinance of 2001, and most recently under the Local Government (Amendment) Act 2013.
Queensland has modernised its local government law under its Local Government Electoral Act of 2011, and a new subsidiary legislation, the Local Government Regulations 2012 (passed under its Local Government Act of 2009).
By far the most impressive reform of a local government law has been carried out by the government of British Columbia, Canada, under its recent Local Government Act of 2015 (see //www.bclaws.ca/civix/document/id/complete/statreg/r15001_00). This is a truly massive modern legislation containing 783 sections spread out in 18 parts.
Part 1 deals with purposes and interpretation, Part 2 deals with the incorporation of municipalities and regional districts, Part 3 with electors and elections, Part 4 with assent voting, Part 5 with regional districts (purposes and principles), Part 6 with governance and procedures, Part 7 with membership and services, Part 8 with general powers and responsibilities, Part 9 with specific service powers, Part 10 with service structure and by-laws, Part 11 with financial management, Part 13 with by-law enforcement, Part 13 with regional growth strategies, Part 14 with planning and land use management, Part 15 with heritage conservation, Part 16 with municipal provisions, Part 17 with improvement districts, Part 18 with legal proceedings in relation to local government, and Part 19 with general matters and provincial authorities.
I do not have any doubt whatsoever that after six decades of self-rule, our experienced decisionmakers and officials have the capability as well as the energy to carry out reform of complex legislation.
A case in point is the recently-enforced Companies Act 2016 (otherwise known as Act 777) which completely repeals the earlier Companies Act 1965. Act 777, supported by the Companies Regulations 2017 and many other new laws passed by Parliament at almost the same time have brought our 50-year old company law into the 21st century.
A similar reform exercise has been carried out affecting another old law, the National Land Code of 1965, by the passage of the National Land Code (Amendment) Act 2016 (also known as Act A1516). This new amendment came into force on Jan 1, this year (see “Reforms make our property law better”, New Straits Times, March 23, 2017).
If our two 50-year old laws (affecting corporate and land matters in the country) can be reformed, is there any valid reason why our 40 year-old local government law cannot similarly be modernised?
**The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, academia