K-point: Constitutional Tort By The Selangor State Service Commission?

K-point

I was never interested in who was or is to be the State Secretary (SS) of Selangor. Then the “K-point” issue – the appointment of one Khusrin Munawi as the new SS – arose and unleashed a barrage of questions, allegations and venom. I was still not interested.

It subsequently struck me after speaking to a friend that I live in Ampang Jaya and my State Assemblyperson Azmin Ali would be affected by the actions of the SS which in turn would “jeopardise the administration”, be “felt on the ground”, and cause life in my lovely neighbourhood to come to a “stalemate”. (As an aside, the words in inverted commas are not mine but note how sensational K-point has become by the repetitive use of certain key words by the media and interested parties. It’s all us for letting it be about them.)

Surely this realisation must count for something then? No. It was only when a LoyarBurokker, in usual LoyarBurok fashion, conned me into believing that this narrative had to be written that I spent time writing this instead of going to sleep.

Given that I respectfully disagree with the views my learned friends, Hafarizam Harun and Tommy Thomas, it is necessary to take some time to chart the complicated constitutional characters of K-point.

In preface, my view on the matter had been succintly summarised on 3 January 2011 in theSun by Karen Arukesamy but subject to the caveat mentioned therein, i.e. “except if there is a law that extends its [Public Services Commission] jurisdiction to Selangor”. (As an aside, it has been most difficult to research this issue because Malaysian laws dating back to the ’50s and ’60s are inaccessible and all over the place not having been properly archived and stored. It is time the Federal and State Governments collate the same and publish them free online through the Attorney General’s Chambers. Or through LoyarBurok?)

Let’s start.

I.    Carving out of the State public service in the Federal Constitution

Law Article 132(1) of the Federal Constitution (FC) states that the public services include “(g) the public service of each State”. The qualifications for appointment and conditions of service of persons in the State public service may be regulated by State law (for the purposes of K-point, the Selangor State Constitution and Selangor Enactments) and subject to the same, by the Ruler of the State.

Application Immediately one sees that State law, in terms of qualifications and conditions, takes precedence in respect of the State public service. Relate it back to the post of the SS and under Article 52 of the Selangor State Constitution (SSC), the SS must be of the Malay race and profess the Muslim religion.

Law Article 132(2A) FC states that every person who is a member of the public services (i.e. armed forces, judicial and legal service, general public service of the Federation, police force, joint public services and education service) holds office during the pleasure of the Yang di-Pertuan Agong. However, every person who is a member of the State public service holds office during the pleasure of the Ruler.

Application The allegiance of the State public service is directly to the Ruler of the State, in this case the Sultan of Selangor, and not to the Yang di-Pertuan Agong (federal).

Article 132 FC sets the tone, but it is not the clincher. All 132 merely does is to remind us that the State public service has a special place in our federal-state system, and is set apart from other public services. (Read MyConstitution’s excellent The  Rakyat Guides: 3. Federal-State Relations if you want to know more.) The State Constitutions are also to be read in tandem with the Federal Constitution in the employment of State public servants.

II.    Jurisdiction of the Public Services Commission (PSC)

Law Article 139(1) FC states that there shall, subject to Article 144, be a PSC whose jurisdiction shall extend to all persons who are members of the general public service of the Federation and joint public services (other than the Auditor General), to members of the Malacca and Penang public services and, to the extent provided by Clause (2), to members of the other State public services.

Application In K-point, the State in question is Selangor. The italicised words above are important, the rest are irrelevant to the issue. Does Article 139(1) read with Articles 139(2) and 144 give PSC jurisdiction over the Selangor public service?

Re: Article 139(2) FC

Law Article 139(2) FC states that the Legislature of any State other than Malacca and Penang may be law extend PSC’s jurisdiction to all or any persons in the State public service; but if at any time there is no such law and there is no established and functioning State Public Service Commission, PSC’s jurisdiction shall extend to all members of the State public service if federal law provides so.

Application In simple terms, PSC’s jurisdiction may only extend to members of the Selangor public service:

(i)   if there is a Selangor Enactment extending PSC’s jurisdiction to Selangor, e.g. Selangor Extension Enactment; or

(ii)  if there is no such Selangor Extension Enactment and Selangor does not have a functioning State Public Service Commission, federal law extends PSC’s jurisdiction.

Based on a brief, non-exhaustive but tortuous spell of research, it appears that there is no such Selangor Extension Enactment. I stand corrected on this, and I would appreciate feedback in the comments section below.

Further, under Article 97 SSC, there is the Selangor State Service Commission which, to my mind, appears to be the “State Public Service Commission” mentioned above.

Law Under Chapter 10, Article 97(1) SSC states that the Selangor State Service Commission shall have jurisdiction over all persons who are members of the State public service. Clause (9) SSC states that it is the Selangor State Service Commission’s duty to appoint, confirm and emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the services to which its jurisdiction extends.

Application Pursuant to Article 139(2) FC, without the Selangor Extension Enacment and with Chapter 10, Article 97 SSC, PSC’s jurisdiction cannot extend to members of the Selangor public service.

Re: Article 144 FC

Law Article 144(1) states that it shall be the duty of the PSC (and other Commissions established under the FC) to appoint, confirm and emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the service or services to which its jurisdiction extends.

Application Article 97(1) and (9) SSC in respect of the Selangor State Service Commission is similar to Articles 139(1) and 144(1) FC in respect of the PSC. Article 148(2) FC defines the “State Public Service Commission” in Article 139(2) FC as a Commission exercising functions in respect of members of the State public service and corresponding in status and jurisdiction to the PSC, i.e. the Selangor State Service Commission.

III.    Interpreting Article 52(1) SSC

Article 52(1) SSC states that 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. Discourse on which is the proper appointing body under the SSC (in respect of the SS) has centred on the words “appropriate Service Commission”. I agree with my learned friend, Tommy Thomas, that the words are ambiguous. But I humbly differ from his view that one should refer to “constitutional conventions” to then assume the appropriate appointing body would be the PSC.

In this particular case, one should consider the Interpretation Acts 1948 & 1967 (IA) which has expressly defined the words “appropriate Service Commission” like this:

“appropriate Service Commission” in relation to any public officer means such Service Commission as under the [Federal] Constitution has jurisdiction over such officer or in the case of a public officer in the employment of the Government of a State who is not under the jurisdiction of any of such Commission means the public Service Commission of such State having jurisdiction over such officer or if there is no such Commission means the Menteri Besar of such State.

Based on my reading of the law detailed above, PSC has no jurisdiction over the appointment of the SS in Selangor, and taking the IA definition, the “appropriate Service Commission” in Article 52(1) SSC must be the Selangor State Service Commission.

For the moment, I am prepared to say that nothing turns on this because it is way past my bedtime and I have yet to confirm the application of complicated Part III of the IA. The question that needs to be answered is whether Selangor has adopted Part III to interpret its laws – something for the lawyers, really – let me know anyone if you obtain the answer; and law students – you know who you are when you say that you religiously follow this blawg – please help check too and send in your comments below.

The IA definition is definitely food for thought. It’s also time to revise and codify the IA to make it simpler to understand!

IV.    Conclusion

It is my preliminary view (subject to further research which may or may not be done), and I stand to be corrected that:

(a) There does not appear to have been an appointment made by the Selangor State Service Commission in respect of the vacant SS post. The constitutional position requires the Commission to make the appointment. If not, a suit may be filed to compel the Commission to so act.

(b) There is no apparent conflict between the SSC and FC that requires an amendment to the SSC through the Selangor Legislative Assembly.

(c) Issues of who said what and of the taking of oaths are quite irrelevant to the singular constitutional question whether it is PSC or the Selangor State Service Commission that is to appoint the SS.

K-point is a most difficult issue. It reminds us the rakyat that we must always question, always be vigilant and always ensure power is exercised in accordance with the spirit of our constitutions.

I’m going back to sleep in my sleepy neighbourhood. Yawn…

Start the brickbats.

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References:

¶ VS Winslow, “The Public Service and Public Servants in Malaysia” in The Constitution Of Malaysia – Its Development: 1957-1977, eds. Tun Mohamed Suffian, HP Lee & FA Trindade (OUP, 1979) at pages 263-303

¶ LA Sheridan & HE Groves, “The Constitution Of Malaysia” (MLJ, 1979)

Edmund (@edmundbon) chairs the Constitutional Law Committee of the Bar Council and by default writes like this – in case you weren’t able to make head or tail of this post. He wants to retire from practice, do yoga and design clothes for LoyarBeli. Constitutional and human rights law education requires a boost in Malaysia; that’s why the Malaysian Centre for Constitutionalism and Human Rights (MCCHR) aka LoyarBurok Rakyat Centre (LRC) is quickly moving ahead.

Tags: Ampang Jaya, Federal Constitution, Hafarizam Harun, Interpretation Acts 1948 & 1967, K-point, Karen Arukesamy, Khusrin Munawi, Loyarburokker, Menteri Besar, Public Services Commission, Selangor Legislative Assembly, Selangor State Constitution, Selangor State Service Commission, State Assemblyperson Azmin Ali, State Secretary, Tommy Thomas