Security of Tenure of Public Servants & Their Disciplinary Process – Dismissal & Reduction in Rank

This is a commentary on the Security of Tenure of Public Servants & Their Disciplinary Process leading to a Dismissal & Reduction in Rank inspired by a recent news.

𝑳𝒂𝒔𝒕 𝒘𝒆𝒆𝒌 𝒕𝒉𝒆𝒓𝒆 𝒘𝒂𝒔 𝒂 𝒍𝒐𝒕 𝒐𝒇 𝒉𝒐𝒐-𝒉𝒂𝒉 𝒓𝒆𝒈𝒂𝒓𝒅𝒊𝒏𝒈 𝒕𝒉𝒆 𝒓𝒆𝒎𝒐𝒗𝒂𝒍 𝒐𝒇 𝑨𝒎𝒎𝒂𝒓 𝑨𝒃𝒅 𝑮𝒉𝒂𝒑𝒂𝒓 𝒇𝒓𝒐𝒎 𝒉𝒊𝒔 𝒑𝒐𝒔𝒕 𝒂𝒔 𝑫𝒊𝒓𝒆𝒄𝒕𝒐𝒓 𝑮𝒆𝒏𝒆𝒓𝒂𝒍 𝒐𝒇 𝑻𝒐𝒖𝒓𝒊𝒔𝒎 𝑴𝒂𝒍𝒂𝒚𝒔𝒊𝒂.

Minister Tiong King Sing explained that the removal was due to Ammar’s poor performance. See https://lnkd.in/g2mj2xUb 

However, some had challenged the removal as wrongful/unconstitutional, such as for failing to adhere to the due process and conditions under Article 135(2) of the Federal Constitution, which covers restrictions on dismissal and reduction in rank of a civil servant. See https://lnkd.in/g9vGcfyE.

Ammar himself has said that he was stunned to receive the termination, and was never given any prior notice or warning letter.

𝐒𝐨 𝐰𝐚𝐬 𝐭𝐡𝐞 𝐌𝐢𝐧𝐢𝐬𝐭𝐞𝐫’𝐬 𝐝𝐞𝐜𝐢𝐬𝐢𝐨𝐧 𝐭𝐨 𝐫𝐞𝐦𝐨𝐯𝐞 𝐀𝐦𝐦𝐚𝐫 𝐚𝐬 𝐃𝐆 𝐟𝐨𝐫 𝐩𝐨𝐨𝐫 𝐩𝐞𝐫𝐟𝐨𝐫𝐦𝐚𝐧𝐜𝐞, 𝐥𝐞𝐠𝐚𝐥?

Further news have come out since that provided more facts which are relevant:

1. Ammar remains in employment, but was only removed from his post as DG
2. Ammar’s grade as a civil servant has remained.
3. Ammar had been reassigned into the role of Deputy DG instead.

My view is that the termination of the post of DG is valid because:

1. There is a difference between termination of post v dismissal / reduction in rank in the civil service. As per the FC case of 𝐑𝐨𝐤𝐢𝐚𝐡 𝐌𝐡𝐝 𝐍𝐨𝐨𝐫 𝐕. 𝐌𝐞𝐧𝐭𝐞𝐫𝐢 𝐏𝐞𝐫𝐝𝐚𝐠𝐚𝐧𝐠𝐚𝐧 𝐃𝐚𝐥𝐚𝐦 𝐍𝐞𝐠𝐞𝐫𝐢 𝐊𝐨𝐩𝐞𝐫𝐚𝐬𝐢 & 𝐊𝐞𝐩𝐞𝐧𝐠𝐠𝐮𝐧𝐚𝐚𝐧 𝐌𝐚𝐥𝐚𝐲𝐬𝐢𝐚 & 𝐎𝐫𝐬 [𝟐𝟎𝟏𝟖] 𝟐 𝐈𝐋𝐑 𝟒𝟏𝟖.
2. The former, which in this case the appointment of Ammar in the post of DG, is a power granted to the Minister pursuant to S.10(1) of the Malaysia Tourism Promotion Board Act 1992.
3. The power to appoint, comes with the power to remove, as per S.47 of the Interpretation Acts 1947 and 1968.
4. It is the latter, i.e. dismissal or reduction in rank, that requires compliance with Article 135(2) of the Federal Constitution as well as the Statutory Bodies (Discipline And Surcharge) Act 2000.
5. The rules, regulations, & process under Article 135(2) of the Federal Constitution & the Statutory Bodies (Discipline And Surcharge) Act 2000, had not been complied with in this case.
6. However, since Ammar had not been dismissed, and had not been reduced in rank (his grade has remained the same), the two laws do not apply & need not be adhered to.

Specifically the Federal Court in 𝐑𝐨𝐤𝐢𝐚𝐡 held as follows:

[24] This is the suitable juncture to address the core issue raised in the question of law – whether the Minister could dismiss the appellant or could dismiss the appellant in the manner adopted. First, it must be borne in mind that there is a world of difference between grade and post in the public service. Every officer joins the public service at a certain grade. He/she is promoted or demoted in grade. If a post is to be held by an officer of a certain grade, then the officer to assume and execute the duties of that post must be an officer of the required grade, either in current position or with promotion. But once an officer is promoted or demoted to a certain grade, his/her grade stays with him/her until his/her early or compulsory retirement. His/her post may change or may even be taken away altogether. An officer may not even hold a post. But his/her last grade will stay unaffected, regardless of the attendance or absence of an official post. And unless dismissed, an officer retires only upon him/her attaining the retirement age.”

In conclusion, I believe the removal of Ammar as DG was lawful.

Had the Minister wanted to terminate Ammar not only from his post as DG, but his employment all together, or to reduce Ammar’s grade, that can only be done, in summary, as follows:

1. Through a specially constituted Disciplinary Committee;
2. The Disciplinary Committee shall investigate the misconduct / poor performance;
3. If the Disciplinary Committee believes that there is prima facie case against the subject officer, there shall be a charge proferred against the subject officer, and which the subject officer has a right to reply to the same through a representation;
4. If the Disciplinary Committee there upon finds the reply to be not satisfactory, it can proceed to impose the punishment;
5. If the Disciplinary Committee believes further clarification is needed, it may constitute an Investigative Committee, which then a procedure like a “domestic inquiry” will be held for the subject officer;
6. Upon the completion of the investigation, the Investigation Committee shall submit a report on such investigation to the Disciplinary Committee;
7. Then, again the Disciplinary Committee will impose the punishment; and
8. If the subject officer is dissatisfied with the punishment, he/she may file an appeal to a specially constituted Disciplinary Appeal Committee.

At the end of the day, only the Disciplinary Committee can impose the dismissal or reduction in rank on the subject officer, and not the Minister.

We hope this clarifies the Disciplinary Process leading to a Dismissal & Reduction in Rank for a public servant which is similar but yet different to a private employee.

Should you face a similar situation, or know someone that does, feel free to contact us for help or representation.

Side Note 1: It is odd for the Minister to say that Ammar had been reassigned by him as Deputy DG, because the appointment of Deputy DGs should be through the Board i.e. Malaysia Tourism Promotion Board, not by the Minister himself, although his approval is required (as per S. 10(2) Malaysia Tourism Promotion Board Act 1992.

Side Note 2: P. Manoharan had been appointed as the new DG.