K-point: Was Attempt To Amend Selangor Constitution Much Ado About Nothing Or Is There A Sinister Overtone?

By NH Chan

Pretender Khusrin? @ selangorkini

Don’t tell me that there is nobody in the Pakatan Rakyat entourage who has not read the LoyarBurok articles or who would know enough to point out to Menteri Besar Khalid that there is Article 97(1) in the Selangor Constitution? Or are they all sycophants currying favour who are afraid to speak?

The headline on Tuesday’s Star on25 January 2011 declared:

Selangor assembly fails to amend constitution

PETALING JAYA: The emergency sitting of the Selangor state assembly came to nought when it failed to amend the state constitution after it did not garner the required two-thirds majority.

Another newspaperNew Straits Times gave this misleading report:

Article 52 Clause 1 of the 1959 Selangor State Constitution will remain and the position of Datuk Mohd Khusrin Munawi, the state secretary whose appointment the state government had opposed, appeared to have been strengthened.

The constitutional provision states that the Selangor sultan, upon the recommendation of the "appropriate service commission", (in Selangor’s case, the federal Public Service Department) shall appoint individuals holding permanent posts as the state secretary, state legal adviser and state financial officer.

Of course, this report is utter poppycock - it is absolutely incorrect law.

In a comment to one of my articles on the Selangor impasse which appeared inLoyarBurok -"K-point: Palace’s Codswallop, Sycophants Currying Favour And Bob’s Your Uncle" - Mat Top, who was one of those who had commented on my article, gave this sound advice which is also a correct statement of the law:

Mat Top on 25 January, 2011 at 2:11 pm

S’gor gov’t failed to amend Art.52 since it can’t obtain 2/3 majority.

In hindsight, I think the S’gor gov’t is just plain stupid. They have been wrongly advised by their so-called constitutional experts.

Articles written by most lawyers here had clearly shown that the ‘appropriate service commission’ is indeed the State Service Comm. They quoted Art.94 and 97 Selangor Consti read together with sect.66 of the Interpretation Act 48.

Ex-judge NH Chan even said that there has never been an appointment nor a secondment u/Art 134 FC of Khusrin as SS. Yet the State Gov’t following misplaced advices went ahead to try to amend Art.52.

Wouldn’t it be much better for them to first appoint their own SS based on those Articles mentioned above ie 94 and 97 and let the PSC appointee go to court to challenge the legality of the State appointed SS. And if the Fed court ruled, since the matter being a constitutional issue, that PSC is the appropriate commission, then there is justifiable ground to amend Art.52 of the S’gor Consti. Until such a ruling has been made, then the S’gor Govt shld follow sound legal advice given by established lawyers here and Ex-Judge NH Chan that the ‘appropriate service comm’ is their own State Comm.

As it is they are putting the cart bf the horse. There is dispute as to who is the ‘appropriate Service Comm’. Fed Gov’t and Umno lawyers say it is the PSC. Independent lawyers and Ex-Judge NH Chan say it is the State’s service Comm.

I think Khalid Ibrahim has been wrongly advised by those constitutional experts who think that they know the law better than these lawyers and the Ex-Judge NH Chan who have given gratuitous advices. In conclusion, the act to amend the State Consti is a stupid and unwise move.

A cock and bull story is an unbelievable story

The argument put forward by Barisan Nasional through Datuk Satim Diman, its Selangor Opposition leader, at the Assembly is surreal and incredulous; it is not even the law: see New Straits Times on 25 January at page 13:

This crisis would not have happened if the state government, specifically the menteri besar, understands, respects and honours the Federal Constitution and Selangor state constitution, especially the decision of the Sultan of Selangor who has given his consent for Khusrin’s appointment.

Spoken like a barrack room lawyer - like a lawyer burok. But as everyone who has read the Selangor Constitution knows, unless he is an ignoramus, that what was said by the Opposition leader is sheer nonsense.

Anyone who has read the articles on LoyarBurok which have also appeared inMalaysiakini and Malaysia Today would know, as pointed out by Mat Top above, that Article 52(1) of the Selangor Constitution must be read with Articles 94 and 97 of the said Constitution. As I have said before, we need go no further than Articles 52 and 67 of the State Constitution of Selangor to know that the Barisan Nasional’s attitude on the issue is sheer nonsense. It is, therefore, dishonest of them to read only Article 52 and omitting to read Article 97.

52(1) There shall be constituted the offices of the State Secretary … and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.

It is as clear as daylight that the appointment of the State Secretary "shall be made by the appropriate Service Commission" from members of any of the relevant public services.

What is meant by the term "appropriate Service Commission"? For that we have to look at Article 97 of the Selangor Constitution which says:

97(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.

Article 97(1) confirms that there is to be in the State of Selangor a State Service Commission which has jurisdiction over all members of the public services of the State.

So that the appropriate Service Commission in Article 52(1) is the "State Service Commission" referred to in Article 97(1).

By virtue of these two provisions of the Selangor Constitution the State Secretary of Selangor is to be appointed by the State Service Commission of Selangor. The Federal Public Service Commission is not the appointing body for the post of the Selangor State Secretary. So that for anyone to say otherwise is codswallop - the word means "nonsense". It is evident nonsense and unbelievable for anyone to say that the Federal Public Service Commission is the appointing body for the post of the State Secretary of Selangor.

Barking up the wrong tree and pursuing the wrong course of action

The Star on 25 January reported:

The amendment to Article 52(1) of the state constitution would have given the Sultan and Mentri Besar the power to appoint the state secretary, state legal adviser and the Public Service Commission has the power to make the appointments.

… Khalid said the state government strongly believed that the Sultan and the Mentri Besar had the right to play an active role in appointing the state’s top three civil servants …

This is a retrograde step which could only be taken by a most unwise politician. "It is a foolish sheep that makes the wolf his confessor" is a useful proverb.

There is another proverb which says, "A wise man changes his mind, a fool never".

Don’t tell me that there is nobody in the Pakatan Rakyat entourage who has not read the LoyarBurok articles or who would know enough to point out to Menteri Besar Khalid that there is Article 97(1) in the Selangor Constitution? Or are they all sycophants currying favour who are afraid to speak?

Or could there be a sinister overtone to all these happenings?

Could these happenings be a ploy of the BN camp? Like a red herring to provide a false or misleading situation to confuse the PR camp for them to bark up the wrong tree? Perish the thought. I can’t believe they are that devious.

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 [1995] 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. Courtesy of Loyarburok.