Rule of law must prevail

by P. Ramakrishnan
3rd Jan 2011

The Chief Secretary to the Government, Tan Sri Mohd Sidek Hassan, has precipitated a constitutional crisis in Selangor by ignoring time-honoured norms and constitutional requirements in naming the Selangor State Secretary unilaterally.

In any appointment to a state, there must be consultation before a final decision is taken. This sensible approach has been completely sidelined. Mohd Sidek had chosen to ride roughshod over the Menteri Besar of Selangor, Tan Sri Khalid Ibrahim. In doing so, Malaysians are wondering whether he is acting strictly as a civil servant or as a political tool of the Barisan Nasional.

It is a matter of grave concern for Aliran when a functioning state constitution is not respected and its provisions not honoured. It has been pointed out by legal experts that according to Article 52(4) of the Selangor state constitution the state secretary “shall take and subscribe in the presence of the Menteri Besar the following oath of secrecy.” In this instance, the Meneri Besar’s central role cannot be ignored.

It has been announced that the newly appointed Selangor State Secretary, Datuk Mohd Khusrin Munawi, will be taking his oath of office in the presence of His Highness, the Sultan of Selangor. This seems odd according to constitutional expert, Prof A. Aziz Bari, who contends that this is a “new practice” and that he was not aware that such a practice existed.

There is some talk that the MB may convene the state assembly to debate this issue. It may be pertinent to pursue this line of action in order for the state government to exert its authority which is derived from the people.

It would be wrong to set aside what is stated in the written constitution. We must submit ourselves to the rule of law at all times. This is how a democracy functions. Anything short of this will be anarchy.

It is imperative that the state secretary and the MB must enjoy cordial working relationship for the benefit of the state. It is known that Mohd Khusrin and the Selangor state government have been at odds over certain issues. To appoint him as the state secretary in spite of these serious differences would suggest that some foul plot is afoot. Is the Chief Secretary to the Government trying to undermine the Selangor state government?

  1. #1 by dcasey on Monday, 3 January 2011 - 3:43 pm

    It is indeed sad that the Fed Govt deems itself fit to take the back door way in order to get what it wants and use the royalty in replacement of the state constitution if the constition gets in its way. Look at Perak and now Selangor. Shame, shame.

  2. #2 by dagen on Monday, 3 January 2011 - 3:48 pm

    Tu dia “People first.” “Rakyat di dahulukan.”

    Jib Jib Boleh.

  3. #3 by Godfather on Monday, 3 January 2011 - 4:01 pm

    Law of the jungle has prevailed. It has prevailed for the past 30 years. Now we just have to show BN the exit door at the next GE.

  4. #4 by boh-liao on Monday, 3 January 2011 - 4:05 pm

    Too late lah, PR, d Trojan horse is oredi inside Selangor, reported 4 duty at 6.45am 2day
    Like a PC virus, it has started 2 delete, transfer, mutate files, 2 brainwash pro-UmnoB/BN staff, n 2 prepare 4 d ultimate destruction n takeover of PR-led Selangor
    Selangor O Selangor, sudah kena pun belum tahu
    D terminator has arrived, expect a repeat of Perak-like takeover by UmnoB/BN

  5. #5 by boh-liao on Monday, 3 January 2011 - 4:09 pm

    UmnoB/BN has found a perfectly legal way 2 penetrate n destroy a PR-led state
    Watch out, Penang! Next on target of destruction

  6. #6 by Jeffrey on Monday, 3 January 2011 - 4:28 pm

    Selangor Mentri Besar Khalid Ibrahim revealed that HRH Sultan Sharafuddin Idris Shah has acknowledged the fact that has no power in accepting or rejecting any appointments made by the Public Service Commission. That leaves the palace out of the equation. (ref – The MalaysianInsider report by Shazwan Mustafa Kamal January 03, 2011).

    Between Federal Govbt/Putrajaya and Selangor state government then is the obstacle of Article 52(4) of the Selangor state constitution, which states ” the state secretary “shall take and subscribe in the presence of the Menteri Besar the following oath of secrecy.”

    So if the Selangor MB does not “subscribe” ie attest as witness (to demonstrate his consent) to Khusrin Munawi’s appointment in a swearing in ceremony, the latter cannot be appointed.

    (Somemore TheMalaysianInsider reported that Khalid also said that the state government will push for an emergency state assembly sitting to amend the laws on the state constitution regarding the appointment of the state secretary).

    It is hard for Putrajaya to go around this provision (article 52(4)) – the initiative has backfired- and this means that likely it has to backtrack.

  7. #7 by yhsiew on Monday, 3 January 2011 - 4:32 pm

    This is not the first time UMNO breaks the rule of law to suit its agenda.

    Malaysians must not take for granted that democracy is a permanent thing because there are always errant politicians out there trying to break the system so as to accomplish their hidden agenda.

    Democracy has to be safeguarded and renewed from time to time so that it does not degenerate into totalitarianism.

  8. #8 by yhsiew on Monday, 3 January 2011 - 4:45 pm

    ///The Selangor government is set on making life for Datuk Mohd Khusrin Munawi as difficult as possible by banning him from attending all important official meetings.

    Selangor MB Tan Sri Khalid Ibrahim revealed today that his administration will be writing an official letter to the Public Service Commission to discuss a replacement candidate for the top civil service post in the state.

    He also confirmed that until any final decision was reached, the state would not be involved in any “functions or celebrations” which included the newly-minted state secretary.

    “This means that the oath of secrecy ceremony in the front of the mentri besar will not be held. Datuk Mohd Khusrin will not be attending any weekly state government meetings or any state economic action meetings as an ex-officio,” Khalid told reporters today.///

    That is the way to go. Well done, Khalid!

  9. #9 by boh-liao on Monday, 3 January 2011 - 4:56 pm

    “Khalid has claimed d federal government would need 2 consult him first as it was imperative dat both he n d state secretary could work together 4 d good of d Selangor people”
    Fr which planet Khalid arrive?
    Y did he think dat d fed gomen wants 2 appoint a state sec who will work with him 4 d good of d S’gor ppl?
    Khalid betul a simpleton!
    NR n UmnoB simply want 2 install a pro-UmnoB state sec in S’gor 4 d good of UmnoB
    N 2 speed up d downfall of PR-led S’gor, nothing 2 do with d good of d S’gor ppl lah
    CANNOT deal with unprincipled n unscrupulous ppl d normal principled way 1

  10. #10 by Loh on Monday, 3 January 2011 - 5:18 pm

    The Sultan said he had no power to accept the appointment of the SS, but he can reject the appointment by not agreeing to have anything to do with the appointment, such as by not performing the swearing in ceremony when such appointment has not followed normal procedures.

  11. #11 by sotong on Monday, 3 January 2011 - 5:33 pm

    What rule of law?

    By hook or crook, they will find a way to get what they want.

  12. #12 by wanderer on Monday, 3 January 2011 - 5:45 pm

    “Rule of law must prevail”…easily said than done.
    Trying telling to the UMNO/BN, lawless urban political terrorists!!

  13. #13 by boh-liao on Monday, 3 January 2011 - 6:03 pm

    Does d private secretary 2 d Sultan of S’gor, MM Bani, hv an axe 2 grind?
    What’s his role in d appointment of d current SS?

  14. #14 by boh-liao on Monday, 3 January 2011 - 6:09 pm

    What rule of law?
    A minister is alleged 2 hv raped his Indonesian maid, but there is only d sound of silence

  15. #15 by negarawan on Monday, 3 January 2011 - 6:09 pm

    This is another UMNO attempt to destabilize a PR state government against the will of the people. We must deliver a knock-out blow to UMNO soon, and we can make it if PR regains its composure, get its act straighten out, trim away all ex-UMNO/MIC/MCA members who have hidden agenda in PR. Our support is still for PR to form the next government!

  16. #16 by Biopolymath on Monday, 3 January 2011 - 6:41 pm

    I take this as a sign, since the ruling party becomes desperate to cling onto power for the last time. There isn’t much to expect from them, we just wait for the time to do something.

  17. #17 by HJ Angus on Monday, 3 January 2011 - 7:22 pm

    of course the last resort would be to call for state elections and hope to achieve the 2/3 majority needed to amend the state constitution.
    That may precipitate the GE and I am sure people in Perak may also want to return PR to Perak with the 2/3 majority.

  18. #18 by sheriff singh on Monday, 3 January 2011 - 10:44 pm

    In the wake of the Perak crisis, I had commented that other PR states which have and can have a 2/3 majority should amend their respective State Constitutions to ensure that the same thing does not happen in other states.

    But no, PR was very complacent focusing on other issues and priorities. It never learns. Now the same coup is repeated in Selangor.

    Khalid is an amateur, a novice, and a good guy will get sekrewed. You must learn to expect the worst from people who want to do you harm and take precautions. Now see what happens.

    BN will now probably throw an injunction and sue the PR government, and keep the case alive for years. Their kangaroos will gladly comply. The unsworn-in SS will be in office all this while being a thorn in your flesh. Can you have a peaceful administration knowing that there is a spy in your office?

    PR, you are all a bunch of clowns. You expect to conquer and rule in Putrajaya? Better be a jagoh kampong. Maybe not even that.

  19. #19 by yhsiew on Monday, 3 January 2011 - 11:27 pm

    Double standards rule of law?

    BN minister committed rape was not investigated whereas opposition leader allegedly committed sodomy was meticulously investigated.

  20. #20 by Loh on Tuesday, 4 January 2011 - 12:20 am

    Jeffrey :
    Selangor Mentri Besar Khalid Ibrahim revealed that HRH Sultan Sharafuddin Idris Shah has acknowledged the fact that has no power in accepting or rejecting any appointments made by the Public Service Commission. That leaves the palace out of the equation. (ref – The MalaysianInsider report by Shazwan Mustafa Kamal January 03, 2011).

    The state secretary was supposed to be appointed by the State (of Selangor) Service Commission. So Public Service Commission of the federal government has no business appointing a person to the state, though the PSC can offer a federal officer on secondment to the state service commission which in turn makes appropriate appointment. If the swearing-in of the person not acceptable to the Mentri Besar of Selangor is presided over by the Sultan, it would mean that the Sultan has agreed to the appointment as if it had been made by the state service commission. The Sultan shall have nothing to do with the PSC and so the appointment by PSC is irrelevant to the Sultan for him to indicate his approval or otherwise. Curiously, the private secretary to the Sultan of Selangor has announced the swearing-in ceremony to be held on 6 January 2011. Did the Sultan agree to that. If the Sultan took the swearing-in ceremony as a play without having agreed to the significance of the function would he accept that the ceremony is an official act with all its official ramifications? if so, isn’t the office of the Sultan being abused by the secretary? Is the Sultan bound to act on the advise of his private secretary as if the secretary had been the elected official who had constitutional authority to advise the Sultan.

    Civil servants in Malaysia are more powerful than royalty when they were backed by the Prime Minister. The PM can act as he pleases because the constitution of the country is not worth the paper it is written on, and he can rule by law after all the institutions are at his service. The corruption of the country rots from the top.

  21. #21 by johnnypok on Tuesday, 4 January 2011 - 5:34 am

    More hatred … more anger … more pressure … more bad things … more nonsense … more wayang-kulit … more circus clowns … more wasting time and money … like this surely goes bankrupt even before 2019.

  22. #22 by Jeffrey on Tuesday, 4 January 2011 - 8:04 am

    Loh, thanks for your input/comments in #20.

    My knowledge on constitutionality of this issue is not ‘expert’. It is just gathered from secondary sources. However this is what I think.

    First let’s not go into this area whether the HRH Sultan’s private secretary has arranged a swearing-in ceremony to be held on 6 January 2011 without the Ruler’s agreement. Let’s assume there’s nothing amiss in this part about swearing-in ceremony arranged by the palace.

    Second, I also accept what you said about “Public Service Commission of the federal government (PSC) has no business appointing a person to the state, though the PSC CAN OFFER a federal officer on secondment to the state service commission which in turn makes appropriate appointment”.

    I therefore accept the fact that PSC has offered in this instance the state secretary post to Datuk Mohd Khusrin Munawi (a federal nominee).

    I further accept (a) what S’gor MB revealed about the Palace acknowledging that it has no power in accepting or rejecting any appointments made by the Public Service Commission and (b) the MB Khalid himself has no constitutional power to appoint the state secretary – for that power vests in PSC.

    I further accept the point made by Umno lawyer Datuk Hafarizam Harun (as reported by Debra Chong on 3rd Jan in TheMalaysianInsider when he said S’gor MB “has exceeded (or would exceed) his MB’s authority in barring the new state secretary (Khusrin) from carrying out his job whether in the state’s civil service, the state legislative assembly or state exco – once Khusrin is appointed, and if I may add, “validly” appointed by the PSC.

    The question, as always, is whether PSC has validly appointed Khusin as state secretary. I agree it is PSC’s right to appoint but the issue is whether PSC’s right to appoint is unfettered at its absolute discretion and that it could appoint someone like Khusin wholly rejected by the State highest executive officer, the Menteri Besar.

    I seriously doubt so.

  23. #23 by Jeffrey on Tuesday, 4 January 2011 - 8:09 am

    Continuing from preceding post: There are two reasons for this – one based on common sense (to infer the correct position) and the other based on Article 52(4) of the Selangor state constitution.

    The common sense part is that one does not expect a Menteri Besar to work with a state secretary he is not comfortable with or whom he thinks will sabotage his administration. The MB cannot be forced. Otherwise the MB himself will side line the secretary on all important meetings/matters and the state administration will degenerate into internecine ‘cat and mouse’ games.

    That is why we have Article 52(4) of the Selangor state constitution providing that the state secretary’s appointment by PSC could validly take effect, he must “take and subscribe in the presence of the Menteri Besar the oath of secrecy.

    Does it mean the MB’s presence as witness is purely ceremonial? I don’t think so because if, as in this case where MB Khalid refuses to be present, and one cannot jail him for breaking any law for being absent, can the State secretary’s appointment proceed with the oath in the absence of the MB?

    Are we prepared to say that article 52(4) of the Selangor state constitution (requiring MB’s presence as witness) is purely optional/ceremonial and need not be followed as long as PSC made the appointment? I am not prepared to say so.

    I may be wrong but I think that in our system of “Federalism” of check and balance between Federal and State govt’s power, it is Federal power to appoint the State Secretary via the office PSC but this power to be exercised is not unfettered and absolute but subject to the appointment being made by PSC in consultation with the State’s administration represented by the MB.

    Now the MB may not be excited about the appointment but at least h should not detest it. In short, this whole business of consultation is to aim at joint acceptability of appointment by both PSC as well as MB/state govt.

    It is an unreasonable interpretation of both law and constitution to interpret article 52(4) of the Selangor state constitution as implying the presence of MB as subscribing witness is purely ceremonial or optional depending on whether on the morning of the swearing ceremony he gets up on the right side of the bed and is in the mood to attend, and if he does not feel like so doing – because he wants to personally see his son to school on the first day – the appointment is still notwithstanding valid by article 52(4)….And where in the state constitution does it prescribe that MB must attend, grace and be witness in the swearing in ceremony of the state secretary or forfeit or loses his position as MB????

    If there were no such provision either in Federal or State constitutions, then I read, on the basis of both article 52(4) as well as common sense interpretation of it, that the MB’s presence is MANDATORY and this means PSC’s appointment of state secretary IS NOT UNFETTERED and MUST BE IN CONSULTATION with the state MB and is acceptable enough to the MB for him to attend to bless it or otherwise the appointment cannot be valid for infringment of Article 52(4) of the S’gor State constitution!

  24. #24 by HJ Angus on Tuesday, 4 January 2011 - 8:19 am

    yes I agree that the agreement of the MB to the State Secretary is vital for the State to function well and the Chief Secretary has made a major blunder with the political shenanigans.
    He should resign and that will defuse the issue somewhat for the Bankrupsi Negara regime that does not behave like gentlemen.
    I thought the PM spent many years in the UK and had picked up some good manners. Bad breeding really shows.
    I suggest the Selangor state government’s move to amend the constitution is correct and if they fail, they should call for state polls with this important amendment as the main issue.

  25. #25 by Jeffrey on Tuesday, 4 January 2011 - 8:21 am

    The above points are made on assumption and premises of the BN federal Govt that PSC has right to make appointment of state secretary but I argue that it must mandatorily be made in consultation of MB.

    However if what Loh says were correct – that the state secretary was supposed to be appointed by the State (of Selangor) Service Commission and NOT Public Service Commission of the federal government (PSC) which has no business appointing a person to the state other than offering on secondment – then the entire appointment by Federal Chief Secretary of Khusrin Munawi as Selangor’s state secretary is invalid and ultra vires, and cannot be sanctioned by swearing in ceremony officiated by HRH the State Ruler.

    Can you enlighten which part of State or Federal Constitution say that the appointment of state secretary has to be effected by the State (of Selangor) Service Commission??? This is the crux of the issue peratining to validity of appointment.

  26. #26 by Jeffrey on Tuesday, 4 January 2011 - 8:37 am

    Article 52(1) of the State Constitution states that state secretary must be appointed by “the appropriate services commission” but it does not define what is the “the appropriate services commission”.

    Its only Khalid’s own argument that the term refers to the the State (of Selangor) Service Commission which Federal Govt’s position is no, it is a reference to Federal’s Public Service Commission. So we need to look at the matter from Federal’s point of view and premises and see if even by its premises it is correct in light to article 52(4) of the S’gor state constitution.

  27. #27 by sheriff singh on Tuesday, 4 January 2011 - 9:24 am

    See all the legal and illegal complications that have arisen?

    That is precisely the BN strategy, to cause confusion and disarray in the PR government. Both sides will have its version(s) and no doubt their days in court (where it appears to be heading) but this will drag on and on as is necessary.

    Whichever way the wind may blow, the PR government will no doubt be severely weakened and maybe crumble, and BN’s objectives will no doubt be achieved.

    So unless PR can find a really quick, novel, water-tight and legal solution to this awful mess, dare I say it has been ‘checkmated’?

  28. #28 by Bigjoe on Tuesday, 4 January 2011 - 10:26 am

    PR cannot win this by looking at the law narrowly, it must go back to larger principles. The truth is in 1993, the screw up the state constitution in their favour. Prior to that, the MB had full control over the state appointments. The current laws barely give the MB any control but it still should and must because otherwise it violates other part of the constitution.

    This thing that Najib does strips the pretence of MB of any control of the state civil service which they pretended the changes in 1993 would not. Their intention was to strip the Sultan of his power but they way they did it was to strip the state of its rights and pretended it did not.

    The issue really is if the MB has no control over the state civil service which is what this does, does it violate the Federal Constitution on statehood of Selangor?

  29. #29 by HJ Angus on Tuesday, 4 January 2011 - 10:43 am

    Selangor government must take the ultimate challenge and decide on state elections in order to amend the state constitution.
    The ordinary folks have to be given the challenge for change and maybe it allows the rest of the nation to wake up to the enormous task of changing the government in Putrajaya in a peaceful manner.
    If PR wins big in Selangor, it will put off the GE for a while longer and the economy will become worse for the BN to explain.
    On the other hand it may allow cause the BN to call for the GE at the same time and I am sure the voters in Perak are also eagerly waiting.
    Rather than muddle into the judicial minefield with many BN traps, I will take my chances with the voters.

  30. #30 by sheriff singh on Tuesday, 4 January 2011 - 11:23 am

    Khalid must weigh his options carefully. If he does not swear the SS in, all it means is that the SS will not be allowed to attend certain important meetings.

    But the SS can still act and indeed function on other administrative matters. His legality is not in doubt no matter how much you do not like the way he was appointed.

    If the SS now decide to issue all sorts of controversial instructions and policies to the state’s civil servants for implementation, which are all against the PR government, what will Mentri Besar Khalid do? Sit still and do nothing? Ignore him? Summon him?

    Why is the Palace initiating the ‘swearing in’ of the SS this Thursday? Shouldn’t it only organise the event at the request of the Mentri Besar’s office? Why are the Palace officials taking the lead and initiative?

    It would appear that officials at the Palace are dictating the course of events and this cannot be good. They must, like the Sultan, be above politics.

  31. #31 by undertaker888 on Tuesday, 4 January 2011 - 12:55 pm

    hello PR,
    why is it so blardy hard to swear in a PR friendly candidate? you guys rule the state are you not? if it is within the constitutional rights to swear in, by all means do it now. by not doing this, you are endorsing this candidate from satan.

    for once please act decisively before people poke your a$$e$ and make a fool out of you. and mostly it is making me losing faith.

  32. #32 by HJ Angus on Tuesday, 4 January 2011 - 4:16 pm

    in a way the SS crisis shows the types of problems that PR will face when it gets to Putrajaya and it should spend more energy on how it will consolidate power like amending the Federal Constitution asp.
    This will mean the removal of all BN cronies like the Chief Secretary and other top civil servants who are contract extensions as most of them are staunch Bankrupsi Negara regime cronies.
    Maybe freeze their duties until a proper review of their loyalty to Malaysia, not BN.

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