Be careful, Selangor — N.H. Chan

Section 52 of the Selangor State Constitution states:

(1) 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.

(2)(a) The State Secretary who shall be of the Malay race and profess the Muslim Religion, shall be the principal officer in charge of the administrative affairs of the State.

(b) The State Legal Adviser shall advice on legal matters referred to him by His Highness or the State Government.

(c) The State Financial Officer shall be the principal officer in charge of the financial affairs of the State.

(3) Every such official shall have the right to take part in the proceedings of the State Executive Council and the Legislative Assembly and may be appointed to any Committee thereof, but shall not have any vote in the State Executive Council or the Legislative Assembly or any such Committee.

(4) Before any such official 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:

Oath of Secrecy

“I ………………………do solemnly swear (or affirm) that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me in the course of my attending the State Executive Council except as may be required for the due discharge of my duties as such or as may be specially permitted by the State Executive Council”.

As you can see section 52(1) is definitive; it says specifically that the appointment of the State Secretary shall be made by the appropriate Service Commission from amongst members of the relevant public services.

He is not to be appointed by anyone else; not even by the Sultan, not even the prime minister but solely by the particular Service Commission of whom the candidate State Secretary is a member of that public service.

Therefore, the only possible challenge to the State Secretary’s appointment is that he was not appointed by the appropriate Service Commission.

Once a State Secretary has been appointed by the appropriate Service Commission, he “shall have the right to take part in the proceedings of the State Executive Council and the Legislative Assembly”: see section 52(3); he may even be appointed to any Committee of the State Executive Council and the Legislative Assembly (although this is unlikely in the present circumstances where most probably he will be treated like a pariah).

But it is important to note that the subsection also says that he “shall not have any vote in the State Executive Council or the Legislative Assembly or any such Committee.

However, I am of the view that it is unwise that he should be prevented from taking the Oath of Secrecy under subsection (4).

Otherwise, it can be argued that he is not bound by any impediment or stricture not to reveal anything that happened at the State Executive Council.

* Datuk N.H. Chan is a retired Court of Appeals judge who lives in Ipoh, Perak and the author of several books on the judiciary; the latest, a second edition of “How to Judge the Judges”, was published in 2009 by Sweet & Maxwell Asia.