Monday, January 3, 2011

Khalid acting unconstitutionally, says BN lawyer

KUALA LUMPUR, Jan 3 — Umno lawyer Datuk Hafarizam Harun today said Selangor Mentri Besar Tan Sri Khalid Ibrahim has exceeded his authority in barring the new state secretary from carrying out his job, in a move he said could disrupt the state’s civil service.

The Barisan Nasional (BN) coalition’s legal advisor added that the MB was treading on dangerous ground by doing so and could be challenged in court.

“If it is true that the MB will stop the state secretary from being in the exco or legislative assembly sitting, my answer is that he has no power to do so because the power to sit [in on the meetings] is a constitutional power granted to the state secretary upon his appointment.

“The MB must allow him to attend,” Hafarizam said.

The lawyer said the MB’s actions would also jeopardise the administration of the state, and the effect would be felt on the ground.

“The MB also cannot run the state civil service. Legally, the MB cannot interfere in the day-to-day running of the state.

“The MB cannot give instructions to the civil service unless he goes through the state secretary first,” he said, and added: “Because the head of the state civil service is the state secretary.”

Hafarizam said that if Khalid were to give instructions directly to the various state departments and agencies, he would be “acting in excess of his power and whatever acts pursuant to it would be considered coercion and ultra vires”.

“Which means it can be challenged in a court of law,” he said.

Hafarizam was responding to Khalid’s latest move after an emergency audience with the Selangor Sultan at the palace in Shah Alam late this morning.

Immediately after his meeting with the state Ruler, Khalid had declared he would not accept the oath of secrecy from Datuk Mohd Khusrin Munawi, who is Putrajaya’s pick for the state’s No. 1 civil officer post.

The MB added that Khusrin would be blocked from attending all meetings by the state executive council and the state economic action council as an ex-officio.

Hafarizam pointed to Section 52 of the Selangor constitution that spells out the conditions for the appointment of the state’s top three civil officer posts — state secretary, legal adviser and financial officer — that reads:

“(1) There shall be constituted the offices of State Secretary, State Legal Advisor and State Financial Officer; and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.

“(3) Every such official shall have the right to take part in the proceedings of the State Executive Council and the Legislative Assembly and may be appointed to any Committee thereof, but shall not have any vote in the State Executive Council or the Legislative Assembly or any such Committee.

“(4) Before any such official attends a meeting of the State Executive Council, he shall take and subscribe in the presence of the Mentri Besar the following Oath of Secrecy.”

Hafarizam noted that the Selangor constitution showed Khusrin’s appointment was legal and the MB was not in a position to challenge it.

“Historically, Selangor was a federated Malay state. Its civil service is not closed; meaning anyone from the federation can be seconded to be state secretary,” he explained.

“So the appointment has to go through the SPA,” he said, calling the Public Service Commission by its Malay acronym.

Khalid had also announced his plans to call for an emergency sitting of the state legislative assembly to change the constitution, supposedly to change the state constitution to give the Sultan and the MB some say in the appointment of the state’s civil servants.

The Selangor Sultan was reported to have admitted he had no say in the appointment.

However, Hafarizam was scornful of Khalid’s attempts.

“The siding tergempar [emergency sitting] is an exercise in futility,” he said, explaining that in order to pass the amendment, two-thirds of the assemblymen must agree with Khalid.

“They are one short,” he pointed out that there were only 35 PR assemblymen in the Dewan Undangan Negeri.

“Do you think the BN will agree to that?” he asked.

Hafarizam also questioned the state PR’s motive in trying to approve a motion to return power to the state’s monarch that had been limited in 1993 - Malaysianinsider

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