K-point: Whose Servant Is He, Anyway?

Pretender Khusrin? @ selangorkini

Pretender Khusrin? @ selangorkini

Experienced practitioner Chan Kok Keong tells us that if your employer does not want you, your employer cannot (or should not) be forced to have you. Sod off.

1.   The legal answer to the status of the State Secretary is very simple indeed.

2.   Who is the State Secretary? He is an employee of the government. Indeed, he signs off his letters as your obedient servant. In the case of Mohd Khusrin, he wants to work for the Selangor State Government, who will therefore be his employer.

3.   The crucial question is this: can he demand or insist that he works for the Selangor Government?

4.   In common law, no servant can enforce a contract of employment against his employer. Similarly, in layperson’s terms, can a Filipino domestic helper insist that she wants to work for an employer who does not want her?

5.   The State Secretary can be said to be the top civil servant of the State. But he must be acceptable to his employer, the State Government.

6.   Let us take another example, say, a public-listed company on the Kuala Lumpur Stock Exchange. Can a CEO be appointed without the approval and consent of the Board of Directors? The answer is clearly NO.

7.   Even if the Board delegates the selection to a sub-committee to select the CEO, the final decision to hire rests with the Board, and no one else.

8.   In the case of Mohd Khusrin, he says that he has been appointed by the Public Services Commission (PSC).* Although the PSC has all the power to appoint, it still does not follow that the appointment by the PSC cannot be rejected by the Selangor Government.

9.   When commenting on the restricted role of the PSC, which he likened to a kind of employment agency, the late Tun Suffian wrote at page 122 of his book “An Introduction To The Constitution Of Malaysia” (2nd ed, Government Printers):

No firm in the private sector will for a moment agree that promotion of their staff be entrusted to the decision of a body independent of the board of directors.

10.   Rhetoric aside, no public servant can insist on working for a government which has decided not to employ him. It goes against the grain of common sense. Government cannot be bound contractually to hire a servant whom it distrusts or where there is lack of mutual confidence.

11.   What is the function of the PSC in relation to the Selangor Government? The Reid Commission, whose members ultimately were responsible for framing the Federal Constitution suggested a broad principle that government has the right to appointments and terms of employment of its public servants whereas the PSC is responsible for the internal administration of the service as a professional body and disciplinary matters.

12.   And it must also be pointed out that the PSC is a Federal Commission whose powers do not extend into the State, in this case Selangor. However, Article 134 of the Federal Constitution says that the Federation may second a civil servant to the State if there is a request by the State.

13.   So the next question is whether the Selangor Government made such a request? If not, is the Federal Government over-presumptuous by sending a civil servant to Selangor? If it is the latter, the act would clearly be unconstitutional. And also, clearly, ultra vires. Convention or past practice, if any, must give way to the clear words and language of the Federal Constitution.

14.   If at all there is a body which should select the State Secretary, the State Constitution of Selangor already provides that it should be done by the appropriate Service Commission.**

15.   Under Article 139 of the Federal Constitution, it may be possible for a State to extend the powers of the PSC to its own State. If this has been done, it can be easily undone by the State Assembly of Selangor passing a law at the next sitting. The legal provision for this is Article 139(3) of the Federal Constitution.

16.   Based on the above, an appointment by the PSC is therefore no big deal. It is merely a nomination which, as explained above, can be accepted or rejected by the potential employer. The appointment is not irreversible. He is still a public servant except that the Selangor Government does not want him to be their servant.

17.   This is because, ultimately, the one who has the power to appoint or dismiss him is the State Government of Selangor. Whether it is the PSC or the State Service Commission who has the right to nominate him is neither here nor there. It should be reiterated that the Selangor Government is in no way obliged to accept the appointment.

18.   If an ordinary worker cannot sue for specific performance, can a civil servant force his employer to engage him?

19.   If any legal precedent is needed to buttress the Selangor Government’s stand in rejecting Mohd Khusrin, reference can be made to a judgment of the Federal Court in Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222 by Tun Suffian FJ where he said:

I should add that the contract between a public servant such as the plaintiff and the government is of a very special kind, for as was stated by Ramaswami J. at page 1894 when delivering the judgment of the Indian Supreme Court in Roshan Lal v Union of India: “It is true that the origin of Government service is contractual. There is an offer and acceptance in very case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by Government …

20.   The key words are “can be altered unilaterally …” In short, Government cannot be tied down by contract. It must have the right to act in the best interests of the State.

______________________________________

* The PSC was set up after Merdeka. Prior to this, Selangor and other Malay States had their own State Service Commissions. The PSC looks after civil servants for the Federal Government whilst the State Service Commission, as its name suggests, looks after civil servants employed by the State. Although the practice has been accepted previously for the State Secretary to be appointed by the PSC, this has been done with the implied consent of the State Government. Constitutionally, a State Government has the right therefore to reject an appointee who is not appointed by the State Service Commission.

** There are eight public services set out under Article 132 of the Federal Constitution:

(a)   the armed forces;

(b)   the judicial and legal service;

(c)   the general public service of the Federation;

(d)   the police force;

(e)   the railway service;

(f)   the joint public services mentioned in Article 133;

(g)   the public service of each State; and

(h)   the education service.

Under Article 52 of the Selangor State Constitution, the “appropriate” Commission to appoint the State Secretary is obviously the one in respect of (g), i.e. the public service of each State, unless a joint Federal and State Service  Commission has been set up.

Kok Keong runs his own legal  practice in Ipoh and only very recently – to his shock, horror and delight – discovered the art of LoyarBurokking.


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Posted on 7 January 2011. You can follow any responses to this entry through the RSS 2.0.

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11 Responses to K-point: Whose Servant Is He, Anyway?

  1. dr hamid ibrahim

    The State Secretary, the Legal Advisor and the Financial officer are from the
    Malaysian civilservice, i.e. Federal appointees. If a state is not happy with
    any the above, the request the PUBLIC SERVICES DEPT TO BE TRANSFERRRED
    ELSEWHERE AND THE MATTER ENDS.

    TIMES HAVE CHANGE:

    There are current a number of state governments administered by non-unmo.
    so, there will be conflict of interest;

    I was a Public servant for more than 23 years in selangor as secretary to the legal
    advisor Dato Harun Idris; the matter did not arise then. it is difficult for these 3 ex-officios mentioned above, should be transferred out if they cannot agree with the state directive.

  2. Pingback: K-point: Palace’s Codswallop, Sycophants Currying Favour And Bob’s Your Uncle | LoyarBurok

  3. Dato otakering

    No matter what happens Samuel vellu wins

  4. All these quarrels will soon come to nothing after the GE.

    All you have to do is to make sure you come out to vote the corrupted Umno politicians

    out of their offices and especially their gravy trains.

    They have been in their well known offices for 53 years, isn't that more than enough ?

    With the benefits of the shambles they put the people through have them addressed and the problems are forever gone. So make sure you come out and cast your votes to have them eradicated once and for all time, enough is enough !

  5. I appreciate all the great analysis and views shared by the great lawyers here. With all due respect, the Khusrin episode is not so much legal or employment issue. It is just a political plot, using all the greyness to achieve one objective: create the perception that Sultan is in loggerhead with MB. To the average rakyat, all the legal arguments here come to nothing and most likely they don’t have access to. But the damage is most probably already done: that perception.

    What we can draw from this is, UMNO-BN is best and interested only in the art of perception, not policy substance and direction for Malaysia. That at least is one plus point: now we know the many years of so-called ‘development and stability’ is most likely a product of chance, not legacy of UMNO-BN.

  6. SheffieldRevival

    Looks like the State Assembly need only pass a resolution to confirm that the appropriate State Commision to appoint the State Secretary is the SSC …. and since that only needs majority, not two-thirds, it should be much more achievable than to amend the constitution.

  7. Mat Top

    The solution to the problem is therefore quite simple.

    The State’s Service Comm by virtue of Art.52 Selangor Consti has not appointed anyone to be the Selangor SS. And Kushrin’s purported secondment which was made by the PSC u/d Art.134 is clearly unconstitutional since the State Gov’t had never requested that Kushrin be seconded to the State to assume the SS post.

    Therefore to end the impasse, the State Service Comm should now appoint one of the 3 candidates that they have earlier shortlisted as Selangor SS. An appointment letter should now be issued to that effect. Why should the State Gov’t wants to deal with the PSC. They , and not PSC, are the appointing authority. You only deal with the PSC to request for certain named federal public officers or and officer agreeable and acceptable to both party, and who is within the jurisdiction of the PSC be seconded to the State’s service as per Art.134. That is about all the State’s dealing with the PSC.

  8. 4RAKYAT

    correct, the federal psc is merely an agent to appoint state sec for the state govt. so, if the state govt did not give approval in the first place, how did this joker khusrin end up with the job? this is akin to rape. tanpa rela. namanya rogol.

    but most importantly, the rakyat voted in the pakatan rakyat govt. so, please respect the people’s wish – whoever u may be. i dont give a damn.

    SUARA RAKYAT SUARA KERAMAT. no one is above the rakyat. no one.

  9. As an afterthought, this also raises another question. When the Undang-Undang Tubuh Negeri Selangor was accepted, and the clause on State Commission was written, was there a State Commission in the first place?

  10. I have a slight issue with the history of the PSC and your footnote. My understanding is different.

    While the PSC was formed after Merdeka, the Selangor State Commission in its currenet form was only established later in 1960. Prior to 1960, Selangor was totally dependent on the PSC and before Merdeka, the Federated Malay State civil service. Separate state civil service of individual FMS (Perak, Pahang, Selangor and Negeri Sembilan) ceased to exist with the centralization policy of the colonial government in 1800s that led to the formation of the FMS.