///Chief sec defends decision, MB’s consent not needed
Jan 5, 11 8:34PM
The question now is whether the ex-state sec informed the MB and his cabinet the nominees for his replacement.///–Malaysiakini

It means that all state civil servants are ultimately subordinate to Sidek Hassan. It means also that there is no separation of state and federal government since whoever assigned by Sidek Hassan will have to accept his directives against those of the Mentri Besar. So Sidek Hassan is more powerful than the Prime Minister who have no say on state matter such as on land. But Sidek Hassan can direct any state civil servants to do his bidding.

Has the constitution given the Chief Secretary, a civil servant more power in some respect than democratically elected head of state government?

///He said the Sultan’s consent on Mohd Khusrin’s appointment was merely a matter of “courtesy”.
“In this process, any names presented for the Sultan’s perusal is just a matter of courtesy. What is legally valid here is that the appointment is made through the ‘appropriate service commission’, as stipulated in the Constitution, or the promotions board, which carries out the PSD’s powers, as stipulated under Article 144(5B) of the Federal Constitution,” he said.
Despite opposing views from legal experts, Mohd Sidek insisted that the term “appropriate service commission” enshrined under Article 52 of the Selangor Constitution specifically referred to the promotions board and not the Selangor State Services Commission as suggested.///–Mohd Sidek Hassan, http://www.themalaysianinsider.com/print/malaysia/khusrin-appointment-legal-no-need-for-royal-consent/

I reproduce the relevant articles referred to by Mohd Sidek for easy reference:
QUOTE
Functions of Service Commissions
Public services144. (1) Subject to the provisions of any existing law and to the
provisions of this Constitution, it shall be the duty of a Commission
to which this Part applies to appoint, confirm, emplace on the
permanent or pensionable establishment, promote, transfer and
exercise disciplinary control over members of the service or services
to which its jurisdiction extends.
(2) Federal law may provide for the exercise of other functions
by any such Commission.
(3) The Yang di-Pertuan Agong may designate as special posts
any post held by the head or deputy head of a department or by
an officer who in his opinion is of similar status; and the appointment
to any post so designated shall not be made in accordance with
Clause (1) but shall be made by the Yang di-Pertuan Agong on
the recommendation of the Commission whose jurisdiction extends
to the service in which the post is held.
(4) The Ruler or Yang di-Pertua Negeri of a State may designate
as special posts any posts in the public service of his State held
by the head or deputy head of a department or by an officer who
in his opinion is of similar status; and the appointment to any post
so designated shall not be made in accordance with Clause (1) but
shall be made by the Ruler or Yang di-Pertua Negeri on the
recommendation of the Public Services Commission (or, if there
is in the State a State Public Service Commission, on the
recommendation of that Commission).

(5) Before acting, in accordance with Clause (3) or (4), on the
recommendation of the Commission therein mentioned—
(a) the Yang di-Pertuan Agong shall consider the advice of
the Prime Minister; and

(b) the Ruler or Yang di-Pertua Negeri shall consider the
advice of the Chief Minister of his State,
and may once refer the recommendation back to the Commission
in order that it may be reconsidered.
132. (1) For the purposes of this Constitution, the public services
are—
(a) the armed forces;
(b) the judicial and legal service;
(c) the general public service of the Federation;
(d) the police force;
(e) (Repealed);
(f) the joint public services mentioned in Article 133;
(g) the public service of each State; and
(h) the education service.
(2) Except as otherwise expressly provided by this Constitution,
the qualifications for appointment and conditions of service of
persons in the public services other than those mentioned in paragraph
(g) of Clause (1) may be regulated by federal law and, subject to
the provisions of any such law, by the Yang di-Pertuan Agong; and
the qualifications for appointment and conditions of service of
persons in the public service of any State may be regulated by
State law and, subject to the provisions of any such law, by the
Ruler or Yang di- Pertua Negeri of that State.
(2A) Except as expressly provided by this Constitution, every
person who is a member of any of the services mentioned in
paragraphs (a), (b), (c), (d), (f) and (h) of Clause (1) holds office
during the pleasure of the Yang di-Pertuan Agong, and, except as
expressly provided by the Constitution of the State, every person
who is a member of the public service of a State holds office
during the pleasure of the Ruler or Yang di-Pertua Negeri.
(3) The public service shall not be taken to comprise—
(a) the office of any member of the administration in the
Federation or a State; or
(b) the office of President, Speaker, Deputy President, Deputy
Speaker or member of either House of Parliament or of
the Legislative Assembly of a State; or
(c) the office of judge of the Federal Court, the Court of
Appeal or a High Court; or
(d) the office of member of any Commission or Council
established by this Constitution or any corresponding
Commission or Council established by the Constitution
of a State; or
(e) such diplomatic posts as the Yang di-Pertuan Agong may
by order prescribe, being post which but for the order
would be posts in the general public service of the
Federation.
UNQUOTE

The KSN Mohd Sidek Hassan referred to article 144(5b) to justify his action. That clause includes the word : ) the Ruler or Yang di-Pertua Negeri shall consider the advice of the Chief Minister of his State. Of course Khalid the MB of Selangor has confirmed that he does not want Khusrin. Khalid was not consulted prior to the appointment.
The KSN chose to ignore article 144(4) which reads: (4) The Ruler or Yang di-Pertua Negeri of a State may designate
as special posts any posts in the public service of his State held by the head or deputy head of a department or by an officer who in his opinion is of similar status; and the appointment to any post so designated shall not be made in accordance with Clause (1) but shall be made by the Ruler or Yang di-Pertua Negeri on the recommendation of the Public Services Commission (or, if there is in the State a State Public Service Commission, on the recommendation of that Commission).
Quite obviously, the position of the state secretary, the legal advisor and the State finance Officer would fall under the catery of special officers because of the impact they have on the administration of the state. These positions are to be appointed by the state Public Service Commission if it exists. The State Service Commission can accept secondment as needed. Sidek Hassan chose to equate PSD Board as the Commission written in the Selangor constitution. Supreme court judges will have to make sure that the same words carry the same meaning while Sidek Hassan as KSN and exert his authority to equate Board with Commission.
From Article 132(2A) Except as expressly provided by this Constitution, every person who is a member of any of the services mentioned in paragraphs (a), (b), (c), (d), (f) and (h) of Clause (1) holds office during the pleasure of the Yang di-Pertuan Agong, and, except as
expressly provided by the Constitution of the State, every person who is a member of the public service of a State holds office
during the pleasure of the Ruler or Yang di-Pertua Negeri. So unless the state constitution of Selangor expressly stated that the state secretary is not a member of the public service of the state, or who cannot be removed, he serves during the pleasure of the Sultan, and he can be so dismissed on the advice of the Mentri Besar when Khsrin does not serve in his capacity as a Islamic officer.
The federal constitution did not specify that the state public services should be fielded by the Public Service Commission of the federal government. In fact article 132(2) states :Except as otherwise expressly provided by this Constitution, the qualifications for appointment and conditions of service of persons in the public services other than those mentioned in paragraph (g) of Clause (1) may be regulated by federal law and, subject to the provisions of any such law, by the Yang di-Pertuan Agong; and the qualifications for appointment and conditions of service of persons in the public service of any State may be regulated by State law and, subject to the provisions of any such law, by the Ruler or Yang di- Pertua Negeri of that State.
Clearly the constitution recognizes that the state governments are not restricted in how it would recruit staff to serve its administration. Just because the Federal and most of the state governments have been under the same political party, and they accepted the past practices do not make the appointment of offices from the PSC to the states a legal requirement. Khalid should send Khusrin back based on article 132(2A)

///Article 144(5) Before acting, in accordance with Clause (3) or (4), on the
recommendation of the Commission therein mentioned—
(a) the Yang di-Pertuan Agong shall consider the advice of
the Prime Minister; and

(b) the Ruler or Yang di-Pertua Negeri shall consider the
advice of the Chief Minister of his State,
and may once refer the recommendation back to the Commission
in order that it may be reconsidered.///

It has been said that the outgoing state secretary of Selangor forwarded the list of nominees to the Sultan without having sought the advice of the Mentri Besar. Thus article 144 (5b) had not been followed because the Sultan had not received the input of the MB in actng on his selection. The Sultan can do no wrong, since he had every right to expect that the state secretary would act in accordance to the law to obtain the input of the MB. The question then is whether the Sultan was asked to submit the name of Khusrin as the accepted candidate. If he had, then the outgoing Mentri Beaar should be charged for falsifying information giving the impression that the Mentri Besar had indicated his choice of one person from a list of three. If the Sultan had himself selected Khusrin from a list of three, it is for the Sultan to refer to his Chief Minister before a decision was taken. That could be against the protocol, and the situation was created by the outgoing state secretary. So, the former state secretary could be charged for not performing his duty professionally.

It is now known that the appointment of Khusrin have not been done in accordance to the requirement of Constitution. Should the Sultan carry on with the swearing-in ceremony now that the appointment had been unconstitutional. Is it a case of whitewashing an error by his royal presence?

The Selangor constitution states the the appointment should be by an appropriate service commission. The word appropriate would carry the meaning that the commission would be able to field a person suitably qualified for the post. It shows no deference to the hierarchy of federal over state service commission.

The statement of Sidek Hassan that the list was forwarded to the Sultan out of courtesy. This agree with what Khalid said about what transpire with his audience with the Sultan. Thus, the Sultan had no legal authority to either accept or reject the nomination; he had acted beyond his legal authority if he did the selection himself.