Khalid has constitutional right to choose state secretary, says ex-jurist

Khusrin arriving for work at his office in Shah Alam this morning, January 3, 2011. — Picture by Jack Ooi

KUALA LUMPUR, Jan 3 — The ongoing row over Datuk Mohd Khusrin Munawi’s appointment as Selangor’s No. 1 civil servant deepened as another retired judge waded into the fray that has set the state Pakatan Rakyat (PR) government on a collision course with the palace and Putrajaya.

A former Federal Court judge told The Malaysian Insider that both the Malaysian and Selangor constitutions empowered Selangor Mentri Besar Tan Sri Khalid Ibrahim to override the ruling Barisan Nasional (BN) federal government’s pick for state secretary and come up with his own man for the job.

Siding with Khalid in the escalating row, the ex-judge also moved to play down the role of the state secretary in the state government’s day-to-day administration.

“They [the state executive council] can always appoint an acting state secretary. Usually, the second man in command in the state civil service is the state financial officer.

“It’s just like in a company; if the CEO is not around, the chief financial officer doubles up and carries on the work,” he said.

Speaking on condition of anonymity, the ex-judge said the conflict was because the state constitution did not spell out the name of the appropriate service commission that was authorised to appoint the state secretary, which left the Public Service Department (PSD) headed by the Chief Secretary to the Government to take on the role.

“It is important to note that they [Selangor] do not have a state civil service. There is only the federal civil service,” he said in a phone interview yesterday.

“So here we see Khusrin, who happens to be a civil officer, recommended by PSD for the job,” said the Terengganu native who was holidaying in Sarawak.

But he stressed that the PSD and the chief secretary could only suggest candidates, not appoint the officer.

The crisis developed because the PSD did not follow proper procedure; instead of handing its list of candidates to the MB for consideration and waiting for confirmation, the federal body bypassed the state and approached the palace for endorsement.

“Here, the point is that the MB did not know anything at all. That’s wrong. What they did was tantamount to saying the MB is only a figurehead to witness the oath,” the ex-judge asserted.

He was very firm in pointing out that the palace only plays a ceremonial role in the appointment; the oath of loyalty ceremony fixed to take place on Thursday before the Selangor Sultan does not confer the authority of office on Khusrin.

“Ours is a constitutional monarchy system. A constitutional monarch does not have absolute powers.

“A constitutional monarch acts on advice from the state’s chief executive officer, who is the mentri besar. He cannot act on anybody else’s advice. This is accepted convention and the law,” he said.

The former member of Malaysia’s highest court insisted that the palace and Putrajaya had committed a grave error that will cause a governmental deadlock in the country’s richest state.

“How can the MB not have a say in deciding the state’s No. 1 civil officer? After all, this man is going to work with him. They must be able to get along,” he said.

The former judge, who is a member of the Terengganu Regency Advisory Council, observed that the stalemate in Selangor looked similar to the 2008 constitutional row over the appointment of the east coast state’s MB.

He related that he had quarrelled with then-Prime Minister Tun Abdullah Ahmad Badawi who was trying to push close friend Datuk Seri Idris Jusoh to be Terengganu mentri besar instead of Datuk Seri Ahmad Said, the grassroots choice.

“But I told him, we [the Regency Advisory Council] are the appointing authority,” the ex-judge recounted, saying the crisis ended when the PM capitulated to the council.

“It’s all a political game,” the retired Federal Court judge said, stressing on the last word, “because we are not matured enough in our politics”.

Asked if he thought the impending stalemate between the PR government and the palace could be overcome, he exclaimed: “Of course! But now they need a face-saving device.”

The ex-judge dismissed the need for Khalid to resort to the courts to settle the dispute, as some parties have suggested.

Constitutional law lecturer Professor Dr Abdul Aziz Bari had said Khalid’s best chance to break the impasse was to get a court declaration that the Ruler must act on advice only from the mentri besar.

“If I were him, I wouldn’t take it to court. What for? Waste of time,” said the ex-judge.

But, he noted that the federal government may decide to take the MB to court if the state prevented Khusrin from entering the state secretary’s office.

Khusrin reported for work at 6.45am today although the MB had yet to enter his office.

“The court can only rule that the Sultan can only act on advice from the mentri besar, no one else,” he said, and used the same argument to counter a contrasting view held by another ex-judge.

Retired Court of Appeals judge Datuk N.H. Chan had told The Malaysian Insider that Khalid could still lose the legal tussle because of the obscure provision on the appropriate appointing service commission.