Uncategorized

JPA Acted Ultra Vires

Friday, November 16, 2012

Previously I had mentioned the importance on equipping ourselves with some basic knowledge and understanding of the Federal Constitution (Perlembagaan Persekutuan). Undeniably Mr. Zainal Abidin A’ala, the former Selayang Municipal Council (Majlis Perbandaran Selayang-MPS) President (Yang Di-Pertua) which has been transferred by Putrajaya within 24 hours to INTAN the cold storage, could be the next desperate person that shaking his heads while flipping through his newly bought Federal Constitution.

The question is simple but yet difficult to define and interpret:

“Does Public Services Department (JPA) has the jurisdiction to transfer a local authority officials?”

First we must refer to the supreme law of the land – the Federal Constitution.

(A) The Federal Constitution

–> (i) Article 132(1) of Federal Constitution spells:-

“132. (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(e) (Repealed);
(f) the joint public services mentioned in Article 133;
(g) the public service of each State; and
(h) the education service.”

–> (ii) Article 132(2) continues:-

“(2) Except as otherwise 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 the 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.”

The Constitution has literally interprets the management of state public services are within the jurisdiction and power of respective State Government, meaning the State may exercise its power to appoint, promote, transfer or retrench any local council officials as provided by Article 132(2), subject to State Law and law enacted by State Ruler (Raja) or Yang Di-Pertua Negeri.

Thus, if according to the Constitution, the removal of Zainal Abidin from MPS to INTAN by JPA was ultra vires (beyond the powers). Hence, the jurisdiction of JPA should be examined.

(B) Jabatan Perkhidmatan Awam v Suruhanjaya Perkhidmatan Awam

–> (i) JPA – Public Services Department

JPA formally was known as Establishment Office of Malaysia. It carried the name of Federal Establishment Office resulted from the merging of Malayan Establishment Office, Service Branch of the Chief Secretary’s Office and Establishment Division, Federal Treasury before Merdeka.

Thus, JPA is a government agency / department under the Prime Minister’s Department which merely assists the Federal Government pertaining to the public service human resource management. In short, JPA has the authority to manage the federal public servants but not the states. In this context I am referring to the public servants that service in the federal department. One of the example could be the Jabatan Belia dan Sukan Gombak, which it is a federal department but allocated locally.

The argument can be extended by saying JPA is actually not incorporated under any law. You may notice all the rulings issued by the JPA is “Pekeliling Awam” (substantially). Thus, any policy (or even law) enacted by the relevant department / ministry could not contravene to the Federal Constitution otherwise it would be null and void.

–> (ii) SPA – Suruhanjaya Perkhidmatan Awam

SPA is a Constitution creature created under Article 139 of the Constitution. Other than the Auditor-General, the SPA’s jurisdiction covers all bodies of public services and also public servants. No doubt that SPA has power to manage the public services, which including public servants provided under Article 144 of Constitution. Going further, we should examine whether Constitution provides any power to the SPA for state public servants.

Article 139(2) and (3) state the jurisdiction of SPA including the power of managing public services in states, other than Melaka and Penang. (It is too lengthy anyway)

In short, I don’t see any articles in Constitution or federal laws granting authority to the JPA regarding to this matter.

It is getting lengthy and I try to keep it short and simple.

(C) Employment Contract

From my point of view, the validity of transferring Zainal Abidin must also be considered from agreement framework, if any. I have limited access to the appointment of Zainal Abidin as YDP MPS at 2011, thus I have to make a hypothetical assumption here.

–> (i) Zainal Abidin was “loaned” from the Federal Government to MPS

If this were the scenario, unfortunately this former YDP unable to protest much on it but to accept the cold atmosphere at INTAN.

–> (ii) Zainal Abidin’s contract was with the State Government

Clearly and undeniably, JPA has acted ultra vires.

We have had noticed and aware of the risk for letting political interference drive the administration of public services in this circumstance, regardless of federal or states. Therefore, it is crucial and vital for the voters to know how the federal and state government should act, and nevertheless voice out the concerns and exercise the right through a ballot box (and maybe a protest) – (power of democracy could be exercised through ballot box and street protest).

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