GEORGE TOWN: The three-man legal panel set up by Penang government to look into restoring the third vote in its report said the Election Commission (EC) was wrong in its response to the state government's request to hold local government elections (LGE).

Former Bar Council chairman Yeo Yang Poh, who headed the panel, when handing over the report to Chief Minister Lim Guan Eng at a press conference said Section 15(1) of the Local Government Act was void as it was unconstitutional.

The panel, which also consists of renowned lawyers Malik Imtiaz Sarwar and Tommy Thomas, has recommended the state government take the matter to the federal court as it was the only avenue and the final interpreter to decide on the matter.

The EC in response to the state government's request said there was no law to allow the EC to conduct the elections as the prior provision relating to government elections no longer have effect after its repeal in 1976.

EC chairman Tan Sri Abdul Aziz Yusof had said the commission had no power to conduct such elections.

Among EC's arguments was the third vote was not permissible based on the argument that the Local Government Election Act (LGEA) 1960 was no longer in force and that it was repealed by Section 15(1) of the Local Government Act (LGA) 1976.

"We have discovered after studying the matter that Section 15(1) of LGA 1976 is contradictory to the federal constitution. The correct law to govern local government elections is the LGEA 1960 which was revised in 1991 but it is still valid.

"Article 113(4) of the constitution states that the federal state laws may authorise the EC to conduct elections other than those referred to in Clause (1) which is to conduct local government elections," Yeo said.

"In simple terms, local government elections can be held.

"Effect of the Article 113(4) of the Constitution is that the LGE is constitutionally permissible and not mandatory but it cannot be prohibited by any law.

"It is Section 15(1) which is not the law in force, because since 1991 after the revision of the LGEA, the sole and proper law is in fact the LGEA. Therefore, the LGEA clearly prevails and Section 15(1) of the LGA falls.

The panel recommended the state government to seek declarations from the federal court under Article 128(1) of the Constitution to declare Section 15(1) of the LGA void and the LGEA as the sole and proper law on LGE.

"Failing this we will go to the second prong that if Section 15(1) is held to be valid, a state government can opt out of it, by virtue of Section 1(4) of the LGA which states that the state authority may by notification in the gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any bylaws.

"After opting out, the LGEA can be invoked to carry out the LGE," he added.

He said the argument by the EC that the state government required the consent of the National Council of Local Government (NCLG) to carry out the election is an absurd argument.

"NCLG is just an administrative body and it cannot possibly formulate a policy that goes against the constitution. NCLG cannot make a policy prohibiting LGE when the constitution Article 113(4) allows LGE," he added.

Lim said the findings would be presented to the state executive council next week before a decision is made on the matter.