JPA Acted Ultra Vires

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(e) (Repealed);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).

Kick Start With Youth Parliament

I believe there are number of you are unaware of the existence of Youth Parliament in United Kingdom, a parliamentary democracy system which our country should look forward and nevertheless to take a lead in enhancing the democracy education policy among the youth.

UK Youth Parliament is just like a real Parliamentary system, a system which involving a campaigning and voting process. In order to become an eligible Member of Youth Parliament (MYP), he must be a resident of UK and aged between 11 and 18 years old. The voters are also the same category of youth as specified herein.

The MYPs have the opportunity to sit in the House of Commons (in our context it is refer to the "Dewan Rakyat") to debate issues that relate to the youth society across the UK, including Scotland, Northern Ireland and Wales. The constituency is divided according to the number of Local Education Authority (LEA). Each LEA represents a Youth Parliament Constituency.

There are over 250 MYPs in UK presently.

Since the Youth Parliament is given mandate by the UK government in terms of legality and legitimacy, the MYPs do enjoyed certain privileges as the "real MPs". During the term of office the MYP which represent his own constituency will have opportunities to meet the MP and discuss any issues or campaigns in relation to the constituency.

The most powerful feature of the Youth Parliament is the House of Commons Debate. The MYPs will sit in the House of Commons and debate 4 issues which will be voted by the youth through ballot box and additional 1 issue which is reserved for the Youth Parliament to decide on. Such broad system could ensure the participation of the youth within the country.

Further to that, there are numerous advantages arise from such system and nevertheless could crystallize the demands of the youth society into a focused atmosphere, if our country taking into consideration in implementing it:-

a) Enhancing Participatory Democracy

In Malaysia we have to be at least 21 years old and/or above to exercise our right through the ballot box, as provided under Article 119 Federal Constitution. In short, a Youth Parliament system would enable and empower the "underage" youth to enjoy a voting right. Going further, the youth will be getting a vital participation within the country's democracy system.

b) Sharpening Sensitivity on National Issues

A reflection from the UK Youth Parliament system has shown us the youth would need to identify and vote for the issues to be carried right to the House of Commons by the MYPs. Voters are one of the sources of democracy power and certainly they will vote for those issues in which are relate to them personally and even to the country. Thus, the youth will be "trained" in an indirect method under such system to identify those important issues and possibly takes further step to undertake personal research.

c) Creating Greater Constitutionalism

Despite the fact that the UK does not has a codified Constitution, we should be glad and proud to have a set of codified supreme law of the land to govern our country, instead of keep pointing all conflicts to the parliamentary supremacy. A well developed Youth Parliament system will create better awareness of  Constitutionalism among the youth, regardless of the secular-islamic issue that has been politicized by the politicians, as an example. The youth will get to know further on how the separation of powers function governed under the Constitution, including the legislator (parliament) role and its power when they participate within this context.

It is worth to note the Ministry of Youth and Sports has actually initiated the implementation of youth parliament this year (2012) and the first sitting trial has took place in Palace of Golden Horses, Seri Kembangan. Although the members were selected based on self-registration or recommendation by political parties or NGOs, I wouldn't comment much on it due to its fresh starting but the government would need to give more mandate to the youth parliament but not use it as a tool for own propaganda.

A healthy nation democracy system could kick start with a youth parliament, where all the participants are the prospective voters and country leaders sooner or later. Let the youth learn how to in charge of their own country's democracy and I hope we could transform from representative democracy into direct participatory democracy someday!

《我的宪法》运动

2010年10月16日，律师公会联合青团运于隆雪华堂推介中文版《我的宪法》运动，致力将国家宪法的意义和精神传至每个华裔家庭，认识公民基本权与宪法底下赋予的权力和国家的基本操作机关。

1956年，英国House of Lords 的 Lord Reid大法官连同其委员会与马来亚联邦的代表团为即将独立的马来亚联邦撰写国家宪法。1975年8月31日后，有关国家宪法即时生效，也就是至今仍然被沿用的马来西亚国家宪法。

在我国，宪法是最高的保护伞。Lord Reid与其委员会所撰写的宪法清楚阐明宪法赋予我们的基本权力，其中包括言论自由，集会自由，角色自由等。与英国有所差异的是，英国并没有书写式的宪法（unwritten constitution），因为英国国会除了是最高的立法机构以外，更享有至高无上的地位，普遍上任何法令都不得超越国会，除了特定的皇家特权（royal prerogative）。

至今，我国的宪法已被修改无数次，尤其是在敦马哈迪掌权的时代，因此这就是一个长期政权的痛苦后果。我国人民对宪法精神与条例一无所知，乃因认为宪法并未严重影响人民的贴身生活作息。在美国，教育部早已把认识国家宪法列入正课班。

我们已经进入一个国家宪法，各自表述和扭曲的时代。随凭任何一些非政府组织与政党都各自诠释国家宪法，误导人民。一个正常操作的三权，乃国会立法，部门执法与司法审法。由于经历过敦马无法无天的时代，我国的司法体制并未真正彰显其公正性与独立性。法官的职责除了在公堂明辨是非，更必须对国家法律进行诠释，才能确保即使部门执法有误，也能归还清白于无辜人士。

除了败坏的司法体制，人民对于宪法与法令的醒觉更是起着莫大的影响。一个人民对宪法和法令的基本认知，能确保他了解整个国家的行政弊端，以及所投选的代议士是否有履行其责任。律师公会前主席杨映波说宪法乃一把双面刃，即可保护也可刺杀。因此，人民对于宪法的认知极度重要。

一般民众认为神圣至未敢阅读的宪法，可以在一般的书局以马币10元购得。除此之外，也可利用互联网寻找宪法章节与条文，非常方便。认识宪法，你我有责。

*****************************

中文论坛：《宪法如何影响你》？