PSC can end Selangor stalemate by talking to MB, says lawyer

Constitutional lawyer Tommy Thomas has advised the Public Service Commission (PSC) to discuss with the Selangor governmet on resolving the ongoing deadlock over Datuk Mohd Khusrin Munawi’s appointment as state secretary.

The senior lawyer said the PSC, headed by Chief Secretary to the federal government, Tan Sri Sidek Hassan, appeared to be the right body to decide who becomes Selangor’s No. 1 civil servant; but added that it must first consult the state.

Referring to both the federal and Selangor constitutions, Thomas noted the laws provided for two separate bodies to be set up to deal with the appointment of civil servants.

“Article 52 (1) of the State Constitution of Selangor states that the State Secretary shall be appointed by the appropriate Service Commission from amongst members of any of the relevant public services,” he said.

“Article 132 (1) of the Federal Constitution lists seven different types of public services,” he pointed that it included the general public service of the Federation of Malaysia — as the country is officially called — and the public service of each state.

“Article 139 (1) of the Federal Constitution states that there shall be a Public Services Commission which shall extend to the general public service of the Federation.

But he said the “ambiguous” language made it difficult to decide which of the two bodies had real power to appoint the state’s No. 1 civil servant.

“Article 97(1) of the Selangor Constitution establishes a State Service Commission which shall extend to all members of the public service of the State.

“In essence, federal civil servants belong to the Public Services Commission, while Selangor state civil servants belong to the Selangor Services Commission,” the lawyer said.

“Let me therefore assume for the purposes of discussion, that the ‘appropriate’ appointing authority of Selangor’s State Secretary under Article 52(1) of the Selangor Constitution is the Federal Public Services Commission,” he said in an email to The Malaysian Insider today.

“It does not however follow that the PSC has a free hand in appointing whoever it wishes, and, particularly, a person against the wishes of the State,” he added.

“Accordingly, the PSC (if it is the appropriate appointing Service Commission) must constitutionally consult the mentri besar of Selangor and secures his consent before nominating a candidate.

“What the PSC cannot constitutionally do is to ‘thrust’ or ‘impose’ a state secretary upon an unwilling mentri besar,” he continued.

Thomas said the MB’s role in the appointment process can be seen clearly in Article 52(4) of the Selangor Constitution, that states: “Before any such official (including the State Secretary) first attends a meeting of the State Executive Council, he shall take and subscribe in the presence of the Menteri Besar the following Oath of Secrecy.”

The lawyer said that if Selangor MB Tan Sri Khalid Ibrahim was not happy with the PSC’s pick, he could “frustrate the appointment” by refusing to attend the state secretary’s oath-of-secrecy ceremony as required under Article 52(4) of the state constitution.

By doing so, the state secretary would lose his membership in the state executive council, which is the highest executive decision-making body in the state.

“Further, for practical purposes, a state secretary who does not enjoy the trust and confidence of a mentri besar will be sidelined, and will just fade away,” he added.

But Thomas noted that the Pakatan Rakyat (PR) state government would be going against its own principles if it refused to negotiate with the federal body.

“The fact that the federal and Selangor state governments are in the hands of opposing political coalitions should not foreclose such cooperation and consultation, which is vital for the system to work properly.

“The people of Selangor deserve nothing less,” he said.

Some parties, including Umno lawyer Datuk Hafarizam Harun, have warned that the stalemate could effectively jeopardise the administration of the state, and the effect would be felt on the ground.

The crisis in Selangor started last month when Sidek named Mohd Khusrin as the new state secretary to replace Datuk Ramli Mahmud who left the post on December 31.

Khalid refused to accept the former director of the Selangor Islamic Religious Department (Jais), with whom he and his executive council had clashed with previously.

The first-term mentri besar insisted that he had the right to decide on a person he could work with and was still working on the final name list. - Malaysian Insider