S'gor: Goof-up in 1993 amendment

As the furore over the appointment of the new Selangor state secretary escalates, questions are being raised about the validity of an amendment to the state constitution in 1993.

It removed the sultan’s power and discretion in the appointment of senior civil servants, but one expert now describes the amendment as unconstitutional.

Law professor Abdul Aziz Bari said the process had violated Article 38 of the federal constitution, which requires any major amendment to be approved by the Conference of Rulers.

Article 38(c) states that the ruler can consent or withhold consent to any law and in making or giving advice on appointments when this requires the consent of the conference.

Article 38(4) states that no law directly affecting the privileges, position, honour or dignity of the Malay Rulers shall be passed without the consent of the conference.

“It is clear that the 1993 amendment which withdraws the power of the sultan in either approving or withholding consent goes against the spirit of the federal constitution and the spirit of federalism,” noted Abdul Aziz, who lectures at the International Islamic University.

“I don’t think that it was brought before the Conference of Rulers when it was passed. The amendment could have been done by people who were in the dark about the repercussions. It should be declared null and void.”

Abdul Aziz was commenting on protests against the appointment of Mohammed Khusrin Munawi (left) as Selangor state secretary.

The Selangor sultan yesterday told Menteri Besar Abdul Khalid Ibrahim to resolve the matter with the Public Service Commission (PSC), as he does not have the power to intervene.

Abdul Aziz said the 1993 amendment could have been made after the federal constitution had been amended in 1992 to provide for the Special Court to be set up and to limit the role of the rulers.

“It is Umno’s and BN’s fault for introducing the amendment which goes against the spirit of federalism and which undermines the (role of the) rulers,” he said.

Lawyer Derek Fernandez (left) said the fact the PSC referred to the sultan shows that it is following constitutional convention.

“What it means that consent can only be given after the sultan gets advice from the (state) exco. The 1993 Selangor amendment cannot place the PSC at a level higher than that of the sultan who is bound by law to act on the exco’s advice.

“Why did the PSC go to the sultan for consent when there is no provision (for this) in the constitution (after) it was amended in 1993? Probably the PSC is aware (of) constitutional convention.

“So if they acknowledged constitutional convention (and) the need  to seek the sultan's consent, then they must also be aware the monarch can only act on the exco’s advice.”

Rightfully, said Fernandez, the exco should be consulted first, but it appears that the PSC chose to follow part of one requirement and not the other.

‘Revert to original role’

Abdul Aziz, who specialises in constitutional monarchy, said the Selangor government should resolve the impasse by taking the matter to the Federal Court for judicial review and to get the right interpretation.

“I think the state could move the Federal Court to fix an early date to resolve this and ask it to interpret the amendment. Something ought to be done to correct the wrong done by BN/Umno,” he said.

“I do not agree with the proposal for an emergency sitting of the state legislative assembly to amend the state constitution. Such amendments would be deemed null and void anyway (if not approved by the Rulers).”

He also said the amendment to the constitution has reduced the role of the ruler to that of “a puppet or bystander” and that this is not right.

“The Rulers need to go back to the role (stipulated for them) in the constitution. They must act as constitutional monarchs and be above politics. They must not allow their actions to be seen as favouring certain parties. They can of course function as a check-and- balance (mechanism).

“In Selangor, we have a legitimate Pakatan Rakyat government and the sultan has to recognise this. The sultan cannot act against the wishes of a legitimate government as doing so would affect the state's growth and administration.

“The federal government dominated by BN should also respect this. If it goes ahead with Khusrin’s appointment, it would be seen as interfering in state affairs.”

Abdul Aziz noted however that Khusrin had been embroiled in controversial decisions that have brought him in direct confrontation with the Selangor government.

Common sense dictates, therefore, that Khusrin “is not the right person to head the state administration, as he has to work on daily basis with the menteri besar”.  

Tomorrow, the state exco is scheduled to hold its first meeting of the year, but Khusrin will be absent. Although he reported for duty yesterday, he has yet to take his oath of secrecy.

Khalid (right) has indicated that, even without a state secretary, the government will continue to function.

As is routine, the state assembly secretary will send out notice of the meeting and record the minutes.