K-point: Whose Servant Is He, Anyway?

7 January, 2011

By Chan Kok Keong

Pretender Khusrin? @ selangorkini

Experienced practitioner Chan Kok Keong tells us that if your employer does not want you, your employer cannot (or should not) be forced to have you. Sod off.

1. The legal answer to the status of the State Secretary is very simple indeed.

2. Who is the State Secretary? He is an employee of the government. Indeed, he signs off his letters as your obedient servant. In the case of Mohd Khusrin, he wants to work for the Selangor State Government, who will therefore be his employer.

3. The crucial question is this: can he demand or insist that he works for the Selangor Government?

4. In common law, no servant can enforce a contract of employment against his employer. Similarly, in layperson’s terms, can a Filipino domestic helper insist that she wants to work for an employer who does not want her?

5. The State Secretary can be said to be the top civil servant of the State. But he must be acceptable to his employer, the State Government.

6. Let us take another example, say, a public-listed company on the Kuala Lumpur Stock Exchange. Can a CEO be appointed without the approval and consent of the Board of Directors? The answer is clearly NO.

7. Even if the Board delegates the selection to a sub-committee to select the CEO, the final decision to hire rests with the Board, and no one else.

8. In the case of Mohd Khusrin, he says that he has been appointed by the Public Services Commission (PSC).* Although the PSC has all the power to appoint, it still does not follow that the appointment by the PSC cannot be rejected by the Selangor Government.

9. When commenting on the restricted role of the PSC, which he likened to a kind of employment agency, the late Tun Suffian wrote at page 122 of his book "An Introduction To The Constitution Of Malaysia" (2nd ed, Government Printers):

No firm in the private sector will for a moment agree that promotion of their staff be entrusted to the decision of a body independent of the board of directors.

10. Rhetoric aside, no public servant can insist on working for a government which has decided not to employ him. It goes against the grain of common sense. Government cannot be bound contractually to hire a servant whom it distrusts or where there is lack of mutual confidence.

11. What is the function of the PSC in relation to the Selangor Government? The Reid Commission, whose members ultimately were responsible for framing the Federal Constitution suggested a broad principle that government has the right to appointments and terms of employment of its public servants whereas the PSC is responsible for the internal administration of the service as a professional body and disciplinary matters.

12. And it must also be pointed out that the PSC is a Federal Commission whose powers do not extend into the State, in this case Selangor. However, Article 134 of the Federal Constitution says that the Federation may second a civil servant to the State if there is a request by the State.

13. So the next question is whether the Selangor Government made such a request? If not, is the Federal Government over-presumptuous by sending a civil servant to Selangor? If it is the latter, the act would clearly be unconstitutional. And also, clearly, ultra vires. Convention or past practice, if any, must give way to the clear words and language of the Federal Constitution.

14. If at all there is a body which should select the State Secretary, the State Constitution of Selangor already provides that it should be done by the appropriate Service Commission.**

15. Under Article 139 of the Federal Constitution, it may be possible for a State to extend the powers of the PSC to its own State. If this has been done, it can be easily undone by the State Assembly of Selangor passing a law at the next sitting. The legal provision for this is Article 139(3) of the Federal Constitution.

16. Based on the above, an appointment by the PSC is therefore no big deal. It is merely a nomination which, as explained above, can be accepted or rejected by the potential employer. The appointment is not irreversible. He is still a public servant except that the Selangor Government does not want him to be their servant.

17. This is because, ultimately, the one who has the power to appoint or dismiss him is the State Government of Selangor. Whether it is the PSC or the State Service Commission who has the right to nominate him is neither here nor there. It should be reiterated that the Selangor Government is in no way obliged to accept the appointment.

18. If an ordinary worker cannot sue for specific performance, can a civil servant force his employer to engage him?

19. If any legal precedent is needed to buttress the Selangor Government’s stand in rejecting Mohd Khusrin, reference can be made to a judgment of the Federal Court in Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222 by Tun Suffian FJ where he said:

I should add that the contract between a public servant such as the plaintiff and the government is of a very special kind, for as was stated by Ramaswami J. at page 1894 when delivering the judgment of the Indian Supreme Court in Roshan Lal v Union of India: "It is true that the origin of Government service is contractual. There is an offer and acceptance in very case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by Government … "

20. The key words are "can be altered unilaterally …" In short, Government cannot be tied down by contract. It must have the right to act in the best interests of the State.

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* The PSC was set up after Merdeka. Prior to this, Selangor and other Malay States had their own State Service Commissions. The PSC looks after civil servants for the Federal Government whilst the State Service Commission, as its name suggests, looks after civil servants employed by the State. Although the practice has been accepted previously for the State Secretary to be appointed by the PSC, this has been done with the implied consent of the State Government. Constitutionally, a State Government has the right therefore to reject an appointee who is not appointed by the State Service Commission.

** There are eight public services set out under Article 132 of the Federal Constitution:

(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.

Under Article 52 of the Selangor State Constitution, the "appropriate" Commission to appoint the State Secretary is obviously the one in respect of (g), i.e. the public service of each State, unless a joint Federal and State Service Commission has been set up.

Kok Keong runs his own legal practice in Ipoh and only very recently - to his shock, horror and delight - discovered the art of LoyarBurokking.