Monday, 10 January 2011

The controversy sparked by the Pakatan State Government of Selangor is really much ado about nothing

This is a superb well researched article by Senior Lawyer Mr Roger Tan about his opinion on the political imbroglio surrounding the appointment of the Selangor State Secretary Datuk Khusrin, from Thestar here:

Separate politics from civil service

Politicians should learn to work with the civil servants by winning their hearts and minds, just as in the United States and in the United Kingdom, whenever there is a change in government.

THE recent brouhaha over the appointment of former Selangor Jais director Datuk Mohd Khusrin Munawi as the new Selangor state secretary is really much ado about nothing.

In my humble opinion, the appointment made by the Federal Public Services Commission (PSC) under Article 52(1) of the Selangor State Constitution (SSC) is constitutional and lawful.

Let me explain.

Article 52(1) expressly provides as follows: “There shall be constituted the offices of State Secretary, State Legal Adviser and State Financial Officer; and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.”

Taking the words of Article 52(1) literally, it would appear that the sole appointing authority of the three Selangor State officers is the “appropriate Service Commission”. The provision does not mention the need to consult or even obtain the prior consent of any other person, including the Selangor Sultan and Mentri Besar.

If at all the Service Commission had consulted or obtained the consent of the Sultan or Mentri Besar, then this was done out of courtesy but certainly not out of any legal obligation.

However, the position would have been different had the older version of Article 52(1) not been amended by the Constitution of Selangor (Second Part) (Amendment) Enactment, 1993.

The old version read as follows: “His Highness shall on the recommendation of the appropriate Service Commission by instrument under His Sign Manual and the State Seal appoint a person holding whole time office in the public services to be the State Secretary, the State Legal Adviser and the State Financial Officer respectively: Provided that before acting on the recommendation of the Service Commission His Highness shall consider the advice of the Mentri Bear and may once refer the recommendation back to the Commission in order that it may be reconsidered.”

The 1993 Constitution Amendment Enactment, which was brought about by the 1993 constitutional crisis, also deleted Article 51(6) which read: “In the event of there being no Service Commission having jurisdiction in respect of any appointment of any officers mentioned in Clause (1) such appointment may be made by His Highness acting in His discretion.”

The repealed Article 51(6) was redundant because there is an “appropriate Service Commission”.

In fact, the Selangor Service Commission was established shortly after Merdeka together with Johor and Perak whilst Kelantan and Terengganu had a joint commission. Hence, the Selangor Sultan has made various regulations in relation to the Selangor Service Commission pursuant to Article 132(2) of the Federal Constitution (FC), such as the State of Selangor Public Officers (Appointment, Promotion and Termination of Service) Regulations 2005 (2005 Selangor State Regulations).

It follows the question which everyone is now asking: who is this “appropriate Service Commission” given that Selangor already has its own Service Commission established under Article 97 SSC?

It is respectfully submitted that the PSC is the “appropriate Service Commission” referred to in Article 52(1).....

A superb article which ended with these wise words:

...Sadly, all this boils down to the inexperience of government of the Pakatan leaders. It is hoped that if they strongly believe in a two-party system, they would learn to work with the civil servants by winning their hearts and minds, just as in the United States and in the United Kingdom whenever there is a change in government.

Must read the full article here.

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