Impartiality of the Perak State Public Services
Posted by Oscar the Grouch on March 29, 2009
The article in the Saturday Star 28 March, entitled “Zambry: PAC move contradictory”, makes an interesting read.
The editorial reported Datuk Dr Zambry of accusing the state Public Accounts Committee (PAC) chairman, Wong Kah Woh of contradicting himself by recommending a freeze on Zambry’s salaries and perks. This is in response to the PAC’s stand of neutrality as to the legitimacy of the current Menteri Besar and the state government.
Datuk Dr Zambry – obviously seething that he will have no gaji for some time – argued that Wong had not recognised him as the rightful Menteri Besar, yet now Wong contradicts his stand by freezing Zambry’s salary as Menteri Besar. I think what Zambry is arguing is that: – why freeze my salary when you don’t even recognize me for the job.
Ingenious argument, I must say, but rather stupid as well. If it is contradictory for the PAC not to recognise Zambry as the Menteri Besar and stop paying his salary; it would be a bigger contradictory to not recognise him as the Menteri Besar and yet continue to pay salary for a job he doesn’t have. The PAC might as well just pay me the salary.
But the PAC’s stand on neutrality raises an interesting issue. The public services/civil services are supposed to be neutral and a-political. The public service must be beyond politics. Government of the day will come and go, but the civil service remains, regardless of any change of government or political parties that may win the elections.
Article 132 (1) of the Federal Constitution defines the public services to include the armed forces, the judicial and legal services, the police force, the education service and the public service of the Federation and of each State. Each of these services comes under the purview of a council or commission. For example, the armed forces come under the jurisdiction of the Armed Forces Council; police (Police Force Commission); Judicial (Judicial and Legal Services Commission); Public Service (Public Services Commission); Education (Education Service Commission).
To ensure the independence of these Commissions, Article 142 of the Federal Constitution provides that no Member of Parliament or the State Legislative Assembly shall be appointed as a member of these Commissions.
The Public Services form part of the Executive branch (the other two being the Legislature and the Judiciary). Ultimate executive authority remains with Parliament (in respect of the Federation as a whole), and with Legislature of the State (in respect of a State) (see Article 80 of the Federal Constitution).
This means, whoever holds the majority in either Parliament or the State Legislature will have executive authority, of which the Public Service will be subservient to.
What the Perak PAC has done demonstrates to us some finer constitutional points: – the civil service cannot lean towards political parties. They take instructions from the government of the day, whether it is BN, Pakatan or some other party that may win in the future.
Today, nobody can deny the dearth of constitutional issues and impasses plaguing the state of Perak. Who are the lawful state government and Menteri Besar? Both sides – BN and Pakatan – maintain that they are the lawful custodian of the state. Both believe they are correct. Moral judgements aside, it is hard to say who is right and who is wrong.
Professor Dr. Shad Saleem Faruqi, Malaysia’s constitutional law expert, in his recent article in The Star (Wednesday March 25, 2009; Reflecting on the Law, “An avalanche of legal issues”), implies that BN’s forcible takeover of Perak may not be correct.
On the issue of dismissal of MB, Professor Shad says that Article 16 (7) of the Perak Constitution implies that the Sultan has no power to dismiss an MB. An MB’s cessation of office must come about by resignation under Article 16(6). Professor Shad then questions whether in such a stalemate, did the Sultan have a residual, prerogative power to dismiss Nizar?
On another issue – the appointment of MB – Professor Shad explains that this is a discretionary function but is controlled and structured by constitutional guidelines. The Sultan has to appoint someone who, in his opinion, is likely to command the confidence of the State Assembly. If there is a clear-cut leader with the requisite numbers, the discretion of the Ruler is merely nominal. But in an Assembly where no one has a clear majority, (a “hung Assembly”) the Sultan’s personal discretion acquires great significance.
In this case – Professor Shad says – the Sultan was obviously of the view that Zambry had the requisite numbers and therefore swore him in. But the Sultan did this – Professor Shad added – merely by reliance on face to face, separate interviews with the actors involved. Whether this manner of determination is legally justified or not is something questionable.
With these issues in mind, no one really knows who the rightful Menteri Besar is. If a leading constitutional law expert in the like of Professor Dr Shad Faruqi has his reservations, who are we as lay citizens are able to comment and decide.
This is also the case for the PAC. The PAC took a stand that they will remain a-political until the courts resolve the issue. Technically, that should also be the stand of the Public Service of the Perak state. Why should the state civil servants be so cock-sure they are taking valid directions from a valid legal party?
This is what we have seen recently when the police (who, incidentally, are also under the public services), took a biased stand by blocking the convening of the state assembly at the Perak state secretariat building.
Perhaps after decades of BN-rule, the Public Service should no longer be known as the Malaysian Public Service, but rather the BN Public Service.