TUTORIAL 3

Topic 5: THE PUBLIC SERVICE IN MALAYSIA

Topic 6: RIGHTS, PRIVILEGES AND LIBERTIES IN THE FEDERAL
CONSTITUTION OF MALAYSIA

1. What is the role of the Public Service?

 Perform the day-to-day administration
 Building state legitimacy among the people
 Implementing policy which has been decided at Ministerial level
 Provide valuable feedback to Ministers and the Cabinet on the
implementation of policies
 Maintaining law and order
 Ensures continuity of public goods during times of transition and emergency
 Ensures professional delivery of services (Public=private Partnerships (PPP))
 Uphold good governance and accountability, transparency
2. What is the meaning of stating that public servants are employed “at the pleasure of
the Yang di-Pertuan Agong”? Are there good reasons for this?
 Part X of the Federal Constitution lays out provisions as to:
o Appointment of public servants and the relevant public service
commissions
o Transfer and career advancement of civil servants
o Discipline and dismissal
 Article 132(2A) – public servants hold office during the pleasure of the YDPA
or the State Ruler, as the case may be
 They do not have a right to the position
 Relationship of services: Master-servant relationship
 Can be terminated at any time by the master
 Security of tenure vs contractual relationship
 Government of Malaysia v Mahan Singh
 Haji Arifin v Govt of Pahang
 In these cases, no security of tenure and thus can be terminated anytime
 More cases: Ridge v Baldwin, Loot Ting Yee case
 Article 135(2) - However, public servants are not to be dismissed or reduced
in rank without being given a reasonable opportunity of being heard.
 Article 135(1) – public servants may not be dismissed or reduced in rank by
an authority which is subordinate in the authority having power to appoint
someone of equal rank in that service.
 Part 2:
o Keeps public servants ‘on their toes’ and prevents complacency which
may set in if it were on tenure basis
 o Inefficiency or wrongdoing in the public service can be addressed
quickly
o In recognition of the Sovereign’s position
o Art. 132(2) – government has wide powers to regulate the Public
Services
o Flexibility to the government to improve the public service as
necessary – to have a public service that it can work with
o Argument- having more job security especially in the accountability-
seeking departments/branches (would enhance their independence)
o Argument – lack of job security may create a conflict of interest in
difficult situations

3. Explain the safeguards available in the Federal Constitution for members of the
Public Service in Malaysia.
 Pensions: Article 147 protects pensions, gratuities and other allowances for
members of the public service, their widows, children, dependants or personal
representatives.

However, these are not absolute rights. The Yang di-Pertuan Agong may
reduce or withhold pension if he is satisfied that the public servant is guilty of
negligence, irregularity or misconduct.

 Right to equality: Under Article 8(1) of the Federal Constitution there is a

constitutional right to equality before the law and equal protection of the law.
Thus, no gender, religious or unreasonable discrimination can be practised at
the time of the application or during the period of service.

Regrettably, Article 8’s equality requirement does not apply in the private
sector or to Government-linked companies.

 Racial quotas: In Malaysia, the issue of race discrimination is complicated. A

little known constitutional article – Article 136 – states that all persons of
whatever race in the same grade in the service of the Federation shall be
treated impartially.

Difficult issues arise because Article 136 has to be read along with Article 153
which permits reservations and quotas in favour of Malays and the natives of
Sabah and Sarawak.
 Tun Suffian has suggested that the two articles must be read harmoniously.
At entry point, Article 153 permits reservations. Once in service the equality
rule in Article 136 should apply to matters of promotion, rewards etc.
 Arrears: A civil servant can sue the Government for recovery of arrears or for
any other breach of the law of contract.
 Tortious claims: In Malaysia, the Government is not above the law. Subject to
some exceptions, a civil servant can sue the Government for damages in torts
if the Government or a public authority has caused him loss.
 Safeguard of Article 135(1): Though civil servants have no security of tenure,
they can be removed only after prescribed procedures. Article 135(1) states
that no member of the public services (except a member of the armed force)
may be dismissed or reduced in rank by an authority subordinate to that which
had the power to appoint him.
 Natural justice: Under Article 135(2) no public servant may be dismissed or
reduced in rank without being given a “reasonable opportunity of being
heard”.

The terms “reasonable opportunity of being heard” have generated a wealth

of case law. “Hearing” means that the officer concerned should be given a
proper and prior notice of the allegations against him. The notice must be
adequate in terms and in time.

Subject to some exceptions, the accused should have a full and fair
opportunity of stating his case in reply.

He should be supplied with all evidence, information and documents made

known to the adjudicator. He should have a right to present witnesses and
exculpatory evidence and to cross-examine witnesses on the other side.

144(1), 142(2) – there is some attempt to secure the independence of the

Service Commissions.

4. Why is it important for the neutrality and independence of the civil service to be
constitutionally protected? Is the current level of constitutional protection afforded
to civil servants in Malaysia adequate?
 In Westminster style democracies such as Malaysia, the Public Service plays a
crucial stabilising role.
  The public service is meant to be independent, in that it is not to be a mere
extension of the political executive, but should exist as a separate and
impartial administrative machinery for the implementation of policy
initiatives.
 The independence of the public service is essential
o To ensure the continuity of state administration, even if governments
change from time to time via general elections or handovers of power
o To ensure the integrity and impartiality of the public service in the
public eye and in the services provided to its end users, irrespective of
political affiliation
o To ensure that the public service can tender impartial advice to the
government of the day regarding the appropriate policies to be
pursued in the national interest
o To ensure the effective use of the nation’s human resources
o To ensure that capable public servants are not removed for political
reasons.
 In Malaysia, the independence of the public service is meant to be protected
by the service commissions set up under articles 137-141A
 There are certain safeguards applicable to these commissions, namely,
o Art. 142(1) - Discretion given to the yang di-pertuan agong in making
appointments to the public service commission and the educational
service commission.
o Art. 142(1) – no member of any legislature may be appointed thereto
o Ar. 142(2) – no member of the public services, local government, any
body corporate, or any authority established by law may be appointed
thereto
o Art. 12(3) – no members of trade unions or affiliated bodies may be
appointed
o Art. 143(2) and (3) – protection of commissioners’ remuneration
during their 5 year renewable term of appointment
 As Harding points out the Government’s control over appointments to most
of these commissions means that currently, they are not really independent.

5. “The level of Constitutional protection afforded to public servants falls well short of
the security of tenure. It is time for some senior public servants, at least, to have
security of tenure so as to enhance their independence and effectiveness.”

Do you agree with this statement? Give reasons for your answer.
6. Apong is a civil servant with the Public Works Department (PWD). One day, he was
having a drink in “Moonbucks” with his friend Mamut when the place was raided by
officers from the Malaysian Anti-Corruption Commission (MACC). The officers
discovered RM25,000 in a suitcase under the table where Apong and Mamut had
been seated. Both Apong and Mamut were arrested and questioned by the MACC.
Apong was later charged with received bribes from Mamut to “fast-track” Mamut’s
tender application, and he pleaded not guilty.

While the trial was ongoing, Apong was suddenly dismissed from service by way of a
letter signed by the PWD State Director, on the basis that Apong’s conduct had
“brought disrepute to the PWD and the Public Service in general.” Apong tried to
explain to the State Director that he was innocent of the charges and he did not
know how the suitcase of cash came to be under that table at “Moonbucks” that
day. The State Director refused to listen to Apong, and also refused his request to
make representations before a panel of the PWD or the Public Service Commission
(PSC).

With reference to the provisions of the Federal Constitution and decided cases,
answer the following questions:

(a) Is there sufficient information in the passage above to conclude whether

Apong’s dismissal was in accordance with the provisions of the Federal Constitution?
If yes, why and if not, what further information would you require?
(6 marks)
 Insufficient
 Whether the State Director has the power to appoint/dismiss or not (second
proviso)
 Art. 135(1) – protection against dismissal or demotion by subordinate
authority
o First proviso – state legislatures (other than Penang and Melaka) may
establish a separate Board appointed by the Ruler to dismiss or
discipline State public servants, and in such cases Art. 135(1) does not
apply
o Second proviso – the Commissions may delegate the power of
dismissal and discipline to any separate authority and in such cases
Art. 135(1) does not apply
o Case of Isman bin Osman
 Art. 135(2) – right to be heard before being dismissed or demoted
o First proviso – four situations are provided in which the right to be
heard does not apply
 o Second proviso – where a public servant’s employment is terminated
‘in the public interest’ under any law or regulation in force, such
termination shall not constitute ‘dismissal’, and neither Art. 135(1)
nor Art. 135(2) offer protection
o Art. 135(2)(a) does not apply here because the trial is still ongoing
 Government of Malaysia v Lionel (1974)
o Distinction between dismissal and termination
 This information is sufficient. (The correct answer is yes, in this question, we
cannot argue both parts.) (Put the stand at the first part of the question.)
 The authority has discretion but subject to judicial review.

(b) If Apong’s dismissal from service has been unlawfully done, what remedies
can a court of law in Malaysia award?
(4 marks)
Remedies are fixed in the Industrial Court. In the event of a successful claim
for unfair dismissal, the Industrial Court will award either:
(a) reinstatement and backwages; or
(b) backwages ad compensation in lieu of reinstatement. Backwages are meant
to cover the period between the termination date and the award of the Industrial Court,
but they are capped at 24 months (confirmed employees) and 12 months (probationers).
Compensation in lieu of reinstatement is usually awarded at the rate of 1 month for every
year of service, but this is not a fixed formula and is still subject to the discretion of the
Court. Further, any total monetary sum is also subject to discretionary deduction by the
Court after taking into account various mitigation factors such as conduct of the
employee and post-dismissal earnings. The monetary award given is meant to cover all
losses relating to the termination, and employees cannot claim for additional damages for
things like loss of future earnings, loss of reputation, or mental and emotional stress.
 Reinstatement into role
 Back wages from the time of the unlawful dismissal (accumulated
previous income and benefits)
 Restoration of pension rights, gratuity etc.
 Declaration of wrongful dismissal.
 (Courts of judicature Act 1964, prerogative writs – certiorari, mandamus)
how can you apply to quash the unlawful decision (judicial review)

(c) What do you understand by Apong’s “holding office during the pleasure of
the Yang di-Pertuan Agong”? [Art.132 (2A) FC] In your opinion, does this status make
Apong’s employment more or less secure than that of a contract employee in the
private sector? (10
marks)
 Part X of the Federal Constitution lays out provisions as to:
o Appointment of public servants and the relevant public service
commissions
o Transfer and career advancement of civil servants
o Discipline and dismissal
 Article 132(2A) – public servants hold office during the pleasure of the YDPA
or the State Ruler, as the case may be
 Article 135(2) - However, public servants are not to be dismissed or reduced
in rank without being given a reasonable opportunity of being heard.
 Article 135(1) – public servants may not be dismissed or reduced in rank by
an authority which is subordinate in the authority having power to appoint
someone of equal rank in that service.

 Opinion: Apong will be more secure to work as a public servant, because he is

protected under Art. 132(1) and (2), instead of working in a private sector
which has their own contracts that might not be secured.

 Natural justice and reasonable opportunity to be heard, will be considered by

the court for public law cases. This can be said to be a benefit for Apong.

o Ong Ah Chuan case (Privy Council) – Lord Diplock

 (this question can be argue in both side because it is asking on your opinion,
but must base on reasons.)

(July 2013 Examination @ Lakeside)