In this scathing tract, the People’s Judge NH Chan calls Khusrin a trespasser and asks how can the palace change the meaning of the words of the Selangor Constitution to mean just what the palace chooses them to mean?
This is what Edmund Bon said to theSun on Tuesday, 4 Jan 2011, when he was interviewed by the newspaper:
Quoting Article 52 of the state constitution, he said “appropriate service commission” refers to the Selangor state service commission and not the Federal Public Service Commission.
Bon said Article 132 and 139 of the Federal Constitution states that the jurisdiction of the Public Service Commission does not cover the public service commission of Selangor, except if there is a law that extends its jurisdiction to Selangor.
Bon also said that once the state secretary is appointed by the state service commission it is “not a requirement” to consult the MB or the sultan …
“So the state service commission should do its duty now and appoint a state a state secretary,” he said.
Bon said the oath-taking in the presence of the MB is only to allow the state secretary to sit in the executive council proceedings.
Mr. Bon is a lawyer after my own heart because he was able to give, in a few short sentences, the correct law on the appointment of the State Secretary of Selangor. The Selangor State Government can now act accordingly on the advice which is free. I wonder if the MB had ever consulted his lawyers while the controversy was raging.
When TMI interviewed me a few days ago, all I did was to point to the direction where one can find the answer; which is that only the appropriate Service Commission can appoint the State Secretary of Selangor and no one else. Debra Chong then asked me in the telephone interview what is the appropriate Service Commission, and I told her I am not a practising lawyer; it is not for me to find out as I don’t have a law library. If they (the Selangor State Government) are going to take the matter to court then it is the business of their lawyers to do the looking up for them. But now the intrepid Mr. Bon has done it for them gratuitously in the press interview.
Article 52(1) of the Selangor Constitution says:
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.
As you can see the appointment of these three officials, namely State Secretary, State Legal Adviser and State Financial Officer, are chosen from members of the public service of the State (see above Article 52(1) and below Article 97(1)) by the appropriate Service Commission.
So that the “State Secretary … shall be the principal officer in charge of the administrative affairs of the State”: see Article 52(2)(a) and the “State Financial Officer shall be the principal officer in charge of the financial affairs of the State”: see Article 52(2)(c). By virtue of the offices that they hold it is quite obvious that the State Secretary and the State Financial Officer are chosen from the civil service part of the public service of the State. Since the “State Legal Adviser shall advise on legal matters”: see Article 52(2)(b), the relevant part of the public service of the State in this case is the legal and judicial service.
But what is meant by the term “the appropriate Service Commission” in Article 52(1)? The answer is found in Article 97(1) which says:
97. State Service Commission.
(1) There shall be established a State Service Commission whose jurisdiction shall … extend to all persons who are members of the public service of the State.
So there you have it, there is definitely a State Service Commission that has jurisdiction over all members of the State public service and the appointment of the State Secretary shall be made by this Commission “from amongst members of the relevant public service”: see Article 52(1). Remember this – the operative words in Article 52(1) are “the appointments … shall be made by the appropriate Service Commission”; not by the “Public Services Commission”.
In Selangor, by virtue of Article 97(1), there is a State Service Commission. There is no such thing as a Public Services Commission in Selangor. There is, therefore, no ambiguity in the wording of “Service Commission” in Article 52(1) and this is confirmed in Article 97(1) by the use of the term “State Service Commission”. So that “appropriate Service Commission” cannot possibly mean the Federal “Public Services Commission”.
Therefore, Edmund Bon is clearly right when he says “the appropriate Service Commission” in Article 52(1) refers to the Selangor State Service Commission and not the Federal Public Services Commission.
Furthermore, Bon quotes Articles 132 and 139 of the Federal Constitution to say that the jurisdiction of the Public Services Commission does not cover the public service of Selangor unless there is a law that extends its jurisdiction to Selangor.
Since the State Service Commission of Selangor (by virtue of Article 97(1)) is the appropriate Service Commission and not the Federal Public Service Commission, Khusrin therefore, is not the State Secretary of Selangor as he has not been appointed by the appropriate Service Commission which is the Selangor State Service Commission. Khusrin is a trespasser if he ever comes to work again in the office of the State Secretary.
There is no doubt about it – Mr. Bon is absolutely right. Khusrin is not the State Secretary of Selangor because he has not been appointed by the State Service Commission of Selangor.
The Sultan has no business to do this because he has no such power. He has no prerogative other than that which the law allows. He is being pretentious if he proceeds with the swearing-in of the pretender Khusrin as the State Secretary.
If he thinks he can rely on Article 52 of the Selangor Constitution then he is sorely mistaken. It was reported in yesterday’s theSun, Wednesday, 5 Jan 2011:
PETALING JAYA: Sultan Sharafuddin Idris Shah consented to the appointment of Datuk Mohd Khusrin Munawi as Selangor state secretary as it was in accordance with the constitution and conventions of the state.
According to the Selangor Constitution, the power to appoint the state secretary lies with the Public Service Commission (PSC), the sultan’s private secretary, Datuk Mohamad Munir Bani, said in a statement.
He also said this:
“What actually happened was, the names of candidates for the state secretary’s post were submitted to the sultan by the Public Services Department (PSD), carrying out the federal PSC’s powers, in line with the sultan’s position as the chief executive of the state.
“The ruler gave his consent on one of the candidates proposed, after which the candidate was agreed upon by the federal PSC through a letter released by PSD and appointed in accordance with Clause 1 and 2(a) under Article 52 of the state constitution,” Mohamad Munir said, referring to Mohd Khusrin’s appointment.
But we all know better because we are now apprised of Article 52 of the Selangor Constitution (see above). We know that the term “the appropriate Service Commission” refers to the Service Commission of Selangor and not to the Federal Public Services Commission.
How can the palace change the meaning of the words of the Selangor Constitution to mean just what the palace chooses them to mean? You must already know by now that my grouse about our judges is that they act like Humpty Dumpty when they use words in a statute to mean whatever they want them to mean, just like Humpty Dumpty did when he told Alice, “When I use a word, it means just what I choose it to mean”.
Article 52(3) says, the State Secretary has “the right to take part in the proceedings of the State Executive Council and the Legislative Assembly” and therefore Article 54 applies because it says “no member shall sit … in the State Executive until he shall have taken and subscribed before His Highness … the following oath …”.
But there is no State Secretary yet. He has yet to be appointed by the State Service Commission of Selangor. The one named by the Sultan as the State Secretary is a pretender because he was not appointed by the appropriate Service Commission which is the State Service Commission of Selangor. It cannot be the Federal Public Services Commission as it is not the State Service Commission which is the constitutionally appropriate Service Commission.
NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor  3 CLJ 359 – note solicitors for one party in that case was Messrs VK Lingam & Co). We need more people like NH Chan. That’s why you should buy LoyarBaca’s PASOC and also NH Chan’s book.