Ex-judge cautions against court action in state secretary tiff

Chan said the only possible challenge to the state secretary’s appointment is that he was not appointed by the appropriate service commission. — File pic

KUALA LUMPUR, Jan 3 — The Selangor government may find itself in a deeper mess than a stalemate if it heads to the court to resolve the controversial appointment of its new state secretary, says retired judge Datuk N.H. Chan.

Pointing to section 52 of the Selangor state constitution, Chan stressed the law clearly states that the state secretary is appointed by a service commission and not the mentri besar or even the Sultan as some parties have argued.

“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,” he told The Malaysian Insider.

“Therefore, the only possible challenge to the state secretary’s appointment is that he was not appointed by the appropriate service commission,” he stressed.

The former Court of Appeals judge told The Malaysian Insider that Selangor Mentri Besar Tan Sri Khalid Ibrahim must be very careful to identify the appropriate service commission before initiating any court action to settle the controversial appointment.

“If they sue the wrong service commission, they will lose 100 per cent. Their case will be dismissed immediately,” he explained over the phone from his home in Ipoh.

Another retired judge, from the Federal Court, had told The Malaysian Insider that the appropriate service commission stated in the Selangor constitution referred to the Public Service Department (PSD), headed by the Chief Secretary to the Malaysian Government, Tan Sri Sidek Hassan.

Chan was reluctant to comment on that view.

“I do not know because I’m not a practising lawyer; I do not have the suitable law books to refer to with me,” he replied when asked his opinion on the appointing authority.

“I read that Karpal Singh is helping. They must do their homework and identify the appropriate commission,” he stressed.

Constitutional law lecturer Professor Dr Abdul Aziz Bari, from the International Islamic University, had said that the Selangor MB’s best chance to settle the escalating row was through the courts.

“I believe there are several ways, but quo warranto, like in the Perak crisis case; or just ask for a declaration to that the court can declare the law on the issues,” Abdul Aziz replied when asked how the dispute could be settled in court.

“Since the Sultan is still immune in ordinary court, then like in Perak, sue Khusrin,” he added, referring to the 2009 landmark case over who was the state’s lawful mentri besar that went all the way up to the nation’s highest court.

The country’s richest state has been in turmoil for the past week since Sidek named Datuk Mohd Khusrin Munawi to the post, to replace Datuk Ramli Mahmud who left on December 31.

The Pakatan Rakyat (PR) state government has rejected Mohd Khusrin, and insists it has the right to name its own person for the job.

The conservative former director of the Selangor Islamic Religious Department (Jais) is known to be at odds with Khalid’s state administration.

The Sultan of Selangor overrode the MB’s objection and approved Mohd Khusrin’s appointment.

The state Ruler has also fixed the civil officer’s oath of loyalty ceremony for January 6, which is expected to be boycotted by the state’s PR lawmakers.

Khalid has also indicated that he will not accept Mohd Khusrin’s oath of secrecy before him, which is required of all top state civil officers before they can start their duties.

The tension between the state’s chief executive officer and the state secretary could lead to a breakdown in Selangor’s daily administration.

Several parties have claimed that the federal Barisan Nasional (BN) coalition has been engineering to sabotage Selangor’s administration from within the civil service in its bid to retake the country’s richest state.

Chan firmly stated that the Selangor situation was different from the Perak constitutional crisis that triggered the collapse of Datuk Seri Nizar Jamaluddin’s Pakatan Rakyat (PR) state administration in February 2009 because of a different set of laws.

The retired judge also advised Khalid from taking a belligerent stand against accepting Khusrin’s oath of secrecy.

“I am of the view that it is unwise that he should be prevented from taking the oath of secrecy under subsection (4),” Chan said.

“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,” he added.

He pointed to section 52(3) of the Selangor constitution that read: “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.”

Chan said the state law also allowed for Khusrin to be appointed to any committee set up by the exco and the legislative assembly, but did not see it happening in the current circumstances because “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’,” Chan stressed.