Dato' Dr. Zambri, the new MB for Perak had announced the appointment of 4 Penasihat MB with the status & remuneration equivalent to an Exco member.
Legally can it be done? I am looking at it in the lights of the Laws of the Constitution of the State of Pahang or in Bahasa Melayu Undang-undang Tubuh Kerajaan Negeri Pahang (hereinafter referred to as the State Constitution)
Under the State Constitution, the appointment of the Exco members shall be made by the the Ruler on the advice of the Menteri Besar and it shall not be more than 10 and not less than 4. Exco members must be from among the members of the Legislative Assembly.
In short, to form a government, the Ruler must :-
- Appoint a Menteri Besar
- Appoint Exco members from among the ADUNs
- Collectively the MB & the Excos is known as the Executive Council.
Nevertheless, "the Executive authority of the State shall be vested in the Ruler but Executive functions may by law be conferred on other persons or authorities", and;
"All executive authority of the State shall be expressed to be taken in the name of the Ruler"
In practice this can be seen in the government envelope printed with the words "Urusan Seri Paduka Baginda"
Clearly, if at all Dato' Dr. Zambri had appointed Penasihat with Exco STATUS, the appointment of the 4 can be ultra vires the State Constitution.
Nevertheless, if he had appointed 4 "Penasihat kepada MB dengan diberi elaun sama dengan seorang Exco", it will carry a different meaning. Penasihat can mean a Pegawai Khas as the MB can appoint as many as the need may require and allowances are usually paid differently from those paid to the Exco.
It must also be remembered that EXCO members are "Anggota Pentadbiran" or "Members of the Administration" as defined by the Federal Constitution under Article 160
"ANGGOTA PENTADBIRAN" mengenai Persekutuan ertinya seseorang yang memegang jawatan sebagai Menteri, Timbalan Menteri, Setiausaha Parlimen atau Setiausaha Politik dan mengenai Negeri, ertinya seseorang yang memegang jawatan yang bersamaan dalam Negeri itu atau yang memegang jawatan sebagai ahli Majlis Mesyuarat Kerajaan (lain daripada ahli kerana jawatan). Thus ex-officio members are not i.e the SS, the LA and the SFinO.
I believe the provisions under the Perak State Constitution are similar.
I was also made to understand that DAP Perak had lodged a police report on the appointment of the four Penasihat on ground that the appointment is a waste of money. To me money is not the measurement if it have been done legally.
If the appointment of the 4 is ultra vires the Constitution, it have to be revoked immediately. Instead appoint the 4 as Pegawai Khas with allowances similar to those paid to the Exco. Allowance is not gaji per se. Allowances as in tuntutan perjalanan etc. If they are serving YB, they should not be paid "double gaji".