Pengharaman Pilihan Raya Kerajaan Tempatan Adalah Sah: Mahkamah Persekutuan

PENGHARAMAN PILIHAN RAYA KERAJAAN TEMPATAN ADALAH SAH: MAHKAMAH PERSEKUTUAN

Ini adalah keputusan sebulat suara lima orang Hakim Mahkamah Persekutuan, iaitu Tun Md Raus Sharif, Tan Sri Suriyadi Halim Omar, Tan Sri Ahmad Maarop, Tan Sri Mohamed Apandi Ali dan Tan Sri Ramly Ali, pada 14 Ogos 2014 yang menghalang Kerajaan Negeri Pulau Pinang dari mengadakan pilihan raya kerajaan tempatan.

Tapi DAP ini besar kepala, keputusan Mahkamah Persekutuan pun mereka nak langgar.

GOVERNMENT STATE OF PENANG & ANOR v. GOVERNMENT OF MALAYSIA & ANOR [2014] 7 CLJ 861 Federal Court, Putrajaya

The Government of the State of Penang (‘the first petitioner’) and a Malaysian citizen who was a resident of the State of Penang (‘the second petitioner’) sought the following reliefs (i) a declaration that, inter alia, by virtue of arts. 74, 76 and 113 of, and the Lists in the Ninth Schedule to the Federal Constitution (‘the said provisions’), the State Government has the sole and exclusive jurisdiction (to the exclusion of the Federal Parliament) to enact laws in respect of local Government elections in the State of Penang; (ii) a declaration that ss. 10 and 15 of the Local Government Act 1976 (‘the 1976 Act’), in so far as they purport to prevent the State Legislatures from providing for local Government elections within their States, was ultra vires the powers of the Federal Parliament under the Federal Constitution, and accordingly void; (iii) a declaration that the Election Commission was validly authorised and required to conduct local Government elections within the State of Penang; and (iv) a declaration that the Election Commission assist in the conduct of local Government elections in the State of Penang in accordance with its constitutional obligation.

The issues that arose were (i) whether the Federal Parliament went beyond its legislative competency in legislating ss. 15 and 10 of the 1976 Act; (ii) whether the Penang State Government could exempt the application of s. 15 of the 1976 Act to the whole of the state of Penang by resorting to s. 1(4) of the 1976 Act; and (iii) whether the impugned Enactment 17 legislated by the State Government was ultra vires art. 75 of the Federal Constitution.

Held (dismissing petition) Per Md Raus Sharif PCA delivering the judgment of the court:

(1) Under art. 76(4) of the Federal Constitution, the Federal Parliament could still legislate laws with respect to any matter under the State List for the purpose of ensuring uniformity of law and policy (East Union (Malaya) Sdn Bhd v. Government of the State of Johore & Government of Malaysia). Although local Government elections are not expressly provided for under art. 76(4) of the Federal Constitution, the expression ‘local Government’ which appears under art. 76(4) is wide enough to cover local government elections. Local government elections could not be viewed in isolation. Local government elections relate to the local government itself. The Federal Parliament enacted ss. 10 and 15 of the 1976 Act for the purpose of uniformity of law and policy. The Federal Parliament did so under powers vested upon it under art. 76(4) of the Federal Constitution. Hence, ss. 10 and 15 of the 1976 Act are constitutional and not invalid or void. (paras 31, 35 & 42)

(2) The State Authority is empowered by reason of s. 1(4) of the 1976 Act to exempt the application of any provisions in the 1976 Act. However, the Penang State Government could not unilaterally exempt the application of s. 15 of the 1976 Act as the issue to suspend the local Government elections was policy decision of the National Council for Local Government and to be applicable to all local Governments in the State. Such an exemption would be contrary to the national policy of suspending local Government elections when the 1976 Act was enacted. The Exemption Order made by the State Government was in violation of art. 95A(6) and (7) of the Federal Constitution. Further, the Penang State Government had exceeded its jurisdiction in making the Exemption Order. (paras 45, 46 & 47)

(3) A plain reading of art. 75 of the Federal Constitution connotes that ‘any State law which is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void’. Enactment 17 which is a state law is ultra vires art. 75 of the Federal Constitution. Enactment 17 is void because it was inconsistent with the federal law ie, ss. 10 and 15 of the 1976 Act. (paras 49 & 50)