A system that breeds misdeeds and corruption
New Straits Times (Columns)
02 Nov 2006

In the wake of the Datuk Zakaria Mat Deros scandal, advocate and solicitor ROGER TAN and former president of Transparency International and now special adviser to the United Nations Secretary-General in the Ethics Office TUNKU ABDUL AZIZ offer their views.

ROGER TAN suggests governments should start appointing professionals to serve on local councils while TUNKU ABDUL AZIZ argues that the maladministration at local government level stems from the fact that the system is open to corruption.

ROGER TAN says:

I WELCOME the statement from the Menteri Besar of Selangor, Datuk Seri Dr Mohd Khir Toyo on Monday ("Khir: Zakaria told to resign before audience" — NST, Oct 31) that the MB wanted more professionals to serve on local councils.

However, he said the Local Government Act 1976 ("Act 171") had to be first amended.

In my opinion, no amendment to Act 171 is required in order to appoint professionals who are residents of the local authority area as councillors. Section 10(2) of Act 171 is clear, that is, the state authority may appoint persons who in its opinion have achieved "distinction in any profession".

If the Selangor state authority is unsure of this, then it should consult the National Council for Local Government, set up under Article 95A of the Federal Constitution.

The Article states that the federal government or any state government may consult the National Council for Local Government in respect of any matter relating to local government and its duty is to advise that government on any such matter.

Article 95A(5) also provides that it is the duty of the National Council for Local Government to formulate, from time to time in consultation with the federal government and the state governments, a national policy for the promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the federal and state governments shall follow the formulated policy.

In fact, the National Council for Local Government is no ordinary body as it is chaired by the deputy prime minister and each state is often represented by its chief minister. This is the body, in my view, which should immediately sit down and formulate guidelines on the appointment and re-appointment of councillors within the ambit of Section 10(2) of Act 171.

As I said in my article on Sunday ("Do laws grind the poor, and rich men rule the law?"), any state government which decides not to comply with the policy formulated by the National Council for Local Government may risk losing financial grants and loans from the federal government.

Further, if state governments cannot get their act together in effectively supervising and managing their local authorities, then the time will come when the federal government may have to assume more power and control over them.

Provisions are provided by removing "local government" matters from the state list under the Ninth Schedule to the Federal Constitution and placing it under the concurrent list.

In any event, appointing professionals such as architects, engineers, surveyors, lawyers and doctors who are free of political affiliations or personal interest to sit on the council is a step in the right direction.

It will not only form a check and balance on the manner in which powers and duties of local authorities are carried out but also promotes good governance in local administration. It is akin to appointing independent directors to public- listed companies.

Of course, professionals are not free from some of the perils of holding public office — the temptation of succumbing to corruption and self-aggrandisement.

To avoid accusations of favouritism or other sorts of improper conduct in appointing certain professionals, it is always good practice to first get their respective professional organisations to make the recommendations.

Again, the test is that the person to be appointed must have achieved professional distinction and not those who are already on the advisory panel of the local authority.

But, in practice, many professionals will be unwilling to serve because it means that their firms are prohibited from acting for the local authority, and they may also have to recuse themselves each time a matter handled by their firm arises for deliberation. This is provided for in Section 35 of Act 171 which reads: "No councillor shall by himself or his partner or agent act in any professional capacity for or against the local authority of which he is a councillor."

All said, it is still a good move to allocate two or three seats in each local authority for independent persons, such as professionals, to sit on the councils.

In the case of Datuk Zakaria Mat Deros, I could not agree more with the view of Umno vice-president Tan Sri Muhyiddin Yassin ("He may have tainted party" — NST, Oct 31) that elected representatives should not hold the post of municipal councillor. (Zakaria is also the state assemblyman for Port Klang.)

Muhyiddin cited Johor as an example where if one was an assemblyman or Member of Parliament, there was no necessity for him to sit in municipal councils.

He went on to say that by allowing others, such as party leaders, from the lower ranks who are not elected representatives to be local councillors, there would be better division of labour, more focus on responsibilities and no conflict of interest.

Muhyiddin was spot-on in this issue, which is one of a conflict of interest.

This reminds me of 1980 when the menteri besar and state government of Perak were taken to court by an opposition leader, Lim Cho Hock, because the state authority had appointed the menteri besar as president of the Ipoh Municipal Council.

It was contended that the appointment would put the menteri besar in a conflict situation when it came to the latter exercising his powers under Sections 10(7) and 165(1) of Act 171. Even though Lim failed in the action, the practice of a menteri besar also holding the post of president of the municipal council, since that case, has always been frowned upon.

Article 64(1)(b) of the Selangor state constitution provides that a state assemblyman is disqualified if he holds an "office of profit".

Even though an election court had ruled before that holding a position in the local authority did not fall within the meaning of "office of profit" (Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor, 1998), it is, I am sure, the general view that the practice of vesting too much power in one person should always be discouraged as one should always take heed of the oft-repeated words of Lord Acton: "Power tends to corrupt, and absolute power corrupts absolutely".

Moreover, the state assemblyman may find himself in a conflict situation if the conduct of the local authority of which he is also a councillor is debated in the state legislative assembly. Again, this can be another policy which the National Council for Local Government should formulate.

It is the hope of many that all local authorities will practise good governance when administering the affairs of their local authority area, always asking whether their actions will protect and benefit the local community.

May they always be guided by the definition of good governance enunciated by the United Nations Economic and Social Commission for Asia and the Pacific: "Good governance has eight major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimised, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society."

The writer is an advocate and solicitor

TUNKU ABDUL AZIZ says:

IT is one of the paradoxes of our great Malaysian democracy that while we trust all citizens above a certain age to vote in both federal and state elections, we baulk at the idea of giving the same good people the right to choose their representatives to run their "parish councils".

We must be the only "democratic" country that sees no contradiction in turning local government into a political cesspit of corruption.

Media reports, reinforced by studies on local government undertaken by non-governmental organisations, point to a disgraceful litany of illegal acts perpetrated by councillors and council employees on a systemic basis.

It is obvious that the spate of cases of unethical public behaviour, often bordering on the criminal, can only mean that the institution of local government suffers from internal weaknesses, and compounded by corrupt political leadership and a failure to understand the principle of stewardship and trusteeship in the conduct of public affairs.

At this stage of our national development in social, economic and political terms, we have to recognise the danger of an important pillar of grass roots governance caving in under the sheer weight of maladministration and corruption, and hurting seriously the credibility of the central government, with all that this implies.

A point that is often overlooked is that an ordinary citizen’s first contact with government is not with a state secretariat in Ipoh or Shah Alam, or the mighty seat of the federal government at Putrajaya; these centres of power are too remote, and far removed, from his direct experience.

To him, it is his local council office that is the "government" and that is where he expects his problems to be addressed speedily and in accordance with local laws and regulations.

Unfortunately, more often than not, his first dealings with the government are also his first introduction to both the "supply side" and the "demand side" of corruption. He goes away thinking to himself that corruption is part of the culture of government administration in his country.

In his recently published memoir In the Line of Fire, President of Pakistan General Pervez Musharraf clearly recognises the role of local government in advancing the democratic process.

He observes: "In fact, genuine democracy has to evolve from the grass roots upwards, and not be thrust from the top down. The base of the pyramid has to be very strong, or else it will collapse. A local government system that is empowered politically, administratively and financially lies at the heart of democracy because it is best equipped to understand and also to address the needs and problems of the common people. This is what touches the people most, not assemblies in far-flung provincial or national capitals."

In the case of our local government system, it is not only part of the problem of corruption, it is the problem.

Clearly, as part of its wider reform agenda, the government must show that it has the stomach to deal with the squalid problems of local government administration. Successive local government ministers have been less than useless in addressing this running sore passing for a "unique system" of governance, as a minister glibly once referred to it.

We are not here speaking about rubbish collection and dirty toilets, though we could do with better service, but a thorough cleaning out of the entire system for the benefit of the ratepayers and not Zakaria and other "elite" of the governing establishment. Let us depoliticise local government and allow the people a say in those matters that affect them in such basic and fundamental ways as their own well-being.

It would, in my view, add enormous value to and enhance the quality of local government administration if the pursuit of efficiency, such as now being attempted half-heartedly, was combined with improved standards of ethical behaviour as an essential requisite of service in the public interest.

The problem with efficiency without the benefit of soundly based ethical values is that it can lead to "efficient and effective corruption" with decisions taken all for the wrong reasons. Some of you may have heard about the "colour-coded" decision-making process used by senior officials of a particular local government office. The colour of the ballpoint cartridge used was a code for a certain action to be implemented by subordinates down the line. All very efficient, but is this acceptable public service behaviour?

Let us now turn to a consideration of Kuala Lumpur City Hall (DBKL) as this country’s pre-eminent local government institution and what we see as its raison d’etre. The irreverent and the facetious will say garbage disposal.

That was probably correct in the old days of the sanitary board, but the situation today is a great deal more complex. In fact, it has evolved into a big and highly complicated business in its own right, considering the scope of its operations.

In other words, it is a big business and must be run as such notwithstanding the fact that profit motive is not part of its traditional management objective.

Even though it should not be thinking of "profit" per se, it should certainly be thinking creatively about value creation or, better, value innovation. To continue in the same old mode is to ignore the new social and economic environment of which it is very much a part, and the well-being of the rate-paying community for whom it is responsible.

The performance of an institution such as DBKL is judged against certain important indicators, social and economic, mainly, that have to do with the level and quality of community development. I put great store by sustainable human development, and this can be achieved by those in authority, promoting and practising good governance, including financial probity.

What are the factors that underpin the process of good governance? The first point we need to recognise quickly is that good governance and corruption are mutually exclusive; they make strange and incompatible bedfellows.

So, if City Hall is concerned about good governance, then it cannot tolerate corruption. It must confront corruption, both grand and petty, systematically and decisively, because corruption hits hardest the innocent poor, the marginalised under-privileged, and the least educated members of the community.

To the property developers, and other millionaires chasing more millions who have to deal with local government authorities, corruption is regarded as a business necessity.

According to studies by Transparency International and others, the construction industry the world over is only just behind public procurement in terms of its propensity to corruption. This is the only way, as far as they are concerned, to get things moving.

To them there are no victims, but I can assure you that there are thousands of them out there who are being short-changed because decisions are not taken for public benefit, but for private interests.

The starting point of any governance reform is to put in place an institutional framework incorporating systems of "checks and balances". What this means in practice is to increase transparency without which there can be no accountability in the expectation that official policies and decisions will be put in the public domain and under public scrutiny.

The long-suffering public expect nothing more of their local government officials than that they should carry out their duties efficiently and ethically.

This naturally raises the question: "What is the public entitled to expect from the leadership of a local government authority?"

If the president or mayor is corrupt, colour-coded or not, and lacks self-worth, then no matter how good the systems and procedures are on paper, ethics will inevitably be put on the backburner and it will then be a devil of a job to create an ethical work environment.

My advice, for what it is worth, is for City Hall and other local councils to give serious consideration to closing windows of opportunity for corruption. This can best be done, firstly, by listening to what the public are saying about its service delivery, the integrity of its officers, the quality and effectiveness of the enforcement of its own by-laws, rules and regulations, and acting upon their comments.

Second, by reviewing existing systems and procedures with a view to plugging loopholes waiting to be exploited by the corrupt. It is people who, at the end of the day, will be the key to the success or failure of any particular service delivery programme.

The policy of packing local councils with political party "runners" has wreaked havoc on local government. How much longer can the government look the other way when a huge political and social problem is posing a serious threat to the country’s strategy to alleviate poverty and promote a fair and equitable social order?

As an interim measure, and until local non-political elections are held, I suggest local councillors should be appointed from representatives of trades and professions, ratepayers living in the area. Whatever system we put in place cannot be worse than the prevailing state of affairs.

The writer is a former president of Transparency International and now special adviser to the United Nations Secretary-General in the Ethics Office