In Search for the "Appropriate" Service Commission and the Board Appointed by His Royal Highness: Navigating the Federal-State Jurisdiction of Authority

Pening kepala gua baca all this fiasco over the appointment of the State Secretary of Selangor.....sampai nak ammend constitution tuh....

Gua pun macam biasa...nak tumpang sekaki jugak la kut dalam debate nih....tak kan Judges and Lawyer aja boleh kasi opinion.....

Let us see if basic man on the street logic will prevail in this issue......

So lets start at the Federal Level first......

Article 132. Go here

(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) the railway service;

(f) the joint public services mentioned in Article 133;

(g) the public service of each State; and

(h) the education service.

(2) Except as otehrwise 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 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), (e), (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.

 Now let us look at

Article 135. Go here

(1) No member of any of the services mentioned in paragraphs (b) to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank;

Provided that in its application to members of the services mentioned in paragraphs (g) of Clause (1) of Article 132 this Clause shall not apply to any law which the legislature of any State, other than Penang and Malacca, may make to provide that all powers and functions of a Public Service Commission of such State, other than the power of first appointment to the permanent or pensionable establishment, be exercised by a Board appointed by the Ruler of such State: And provided further that this Clause shall not apply to a case where a member of any of the services mentioned in this Clause is dismissed or reduced in rank by an authority in pursuance of a power delegated to it by a Commission to which this Part applies, and this proviso shall be deemed to have been an integral part of this Clause as from Merdeka Day.

Let now look at these "Commissions"

Article 139.

(1) There shall be a Public Services Commission, whose jurisdiction shall, subject to Article 144, extend to all persons who are members of the services mentioned in paragraphs (c), (e) and (f) of Clause (1) of Article 132, other than the Auditor General, to members of the public services of the State of Malacca and the State of Penang, and, to the extent provided by Clause (2), to members of the public service of any other State.

(1A) The jurisdiction of the Public Services Commission shall extend to -

(a) members of the general public service of the Federation who are employed in a federal department in the State of Sabah or Sarawak;

(b) members of the public service of the State of Sabah or Sarawak who are seconded to the general public service of the Federation; and

(c) members of the public service of the State of Sabah or Sarawak serving in federal posts or in any posts which have become federal posts in that State and who have exercised the option to be members of the general public service of the Federation.

(2) The legislature of any State other than Malacca and Penang may by law extend the jurisdiction of the Public Services Commission to all or any persons in the public service of that State, but no such law shall take effect earlier than twelve months from the date of its passing; and if at any time there is not, in any such State in which no such law is in force, established and exercising its functions a State Public Service such authority as may be provided in that law, and in that event, if the authority is other than the Commission, the disciplinary control exercisable by such authority shall not be exercised by the Commission; and no provision of such law shall be invalid on the ground of inconsistency with any provision of this Part.

Now lets look at the "Subject to Article 144"

Article 144.

(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.

Ok ..........

So lets look at the state level now

Do they have an "appropriate" Commission?

For Full document go here

Ok sekarang...gua dah lost ...........damn belit menatang legal documents......

FACTS at Federal Level

1. Public Service of State Item G is part of the Larger Scope of Article 132
2. Public Service of State may be Regulated by State Law
3. The power of the Public Service Commission(Federal) 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.
4. The Jurisdiction of Public Service Commission (Federal)  subject to Article 144, extend to all persons who are members of the services mentioned in paragraphs (c), (e) and (f) of Clause (1) of Article 132, other than the Auditor General, to members of the public services of the State of Malacca and the State of Penang, and, to the extent provided by Clause (2), to members of the public service of any other State.
5. The legislature of any State other than Malacca and Penang may by law extend the jurisdiction of the Public Services Commission to all or any persons in the public service of that State,
6. 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). 

FACTS at STATE LEVEL

1. The State Secretary, State Legal Advisor and State Financial Officer shall be appointed by the Appropriate Service Commission 
2. The State Service Commission jurisdictions extends to all person who are members of the State Public Service
3. The State Service Commission duty is 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.
4. The State Service Commission POWER OF FIRST APPOINTMENT IS NEGATED by Clause 13A...effectively giving the Power to a BOARD Appointed by His Highness

So feel free to chip in folks.......

Question time....I don't understand Khalid's statement of saying that

3 JAN — Saya telah mengadap DYMM Sultan Selangor hari ini bagi membincangkan isu pelantikan Setiausaha Kerajaan Negeri.

DYMM Sultan Selangor telah berpandangan bahawa Baginda tidak mempunyai kuasa untuk menerima atau menolak calon-calon yang dicadangkan oleh Suruhanjaya Perkhidmatan Awam (SPA).

Ini kerana kuasa itu telah ditarik balik pada 1993 iaitu selepas krisis Perlembagaan berlaku yang mana Undang-undang Tubuh Negeri Selangor turut dipinda bagi memusatkan kuasa persekutuan.

DYMM Sultan Selangor mencadangkan supaya kerajaan negeri mengadakan perbincangan dengan SPA untuk mencari penyelesaian terbaik. Saya mengucapkan terima kasih kepada DYMM Sultan atas nasihat dan pandangan baginda.

Justeru itu, demi kebaikan Negeri Selangor dan menjunjung titah Tuanku, Kerajaan negeri akan menulis surat kepada SPA bagi membincangkan semula calon yang layak, sesuai dan berkebolehan untuk mengisi jawatan tersebut. go here

So who is the Appropriate Service Commission in Selangor?

And who is the BOARD appointed by His Highness?

Will the BOARD appointed by His Highness and the Appropriate Service Commission for Selangor Stand Up please!


BTW Happy New Year Folks...


PS: Lawyers out there do let me know if my references to the Selangor State Constitution or the Federal Consti is incorrect (this is based on available publicly available information)


IMPORTANT UPDATE  05Jan


PLEASE READ SMALLTALK PIECE GO HERE


THERE IS NO DIFFERENCE IN THE PRE 1993 CLAUSE AND THE CURRENT ONE!


SO WHAT BULLSHIT IS KHALID TALKING ABOUT?