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The Public Services in Malaysia - Coggle Diagram
The Public Services in Malaysia
Intro
Types of Public Service Employees:
Permanent:
aka "emplaced on permanent establishment"
Entitled to full range of benefits and protections available to public servants
Can qualify for pension after certain periods of service
Contract:
Employed for contract of fixed term with Federal/State Government / specific department / agency thereof
Term of employment governed entirely by contract of service
Not entitled to constitutional protections / pension
The role of Public Services
Public Service led by Chief Secretary to the Government (Ketua Setiausaha Negara) - country's top civil servant
Role:
perform day-to-day administration
of nation
implementing existing policies of government of the day
Characteristics:
Permanent
- members of Public Services don't change when there's a change in government of the day
Professional
- Public Service is a career in itself and office held not dependent on electoral mandate
Politically neutral
- executes policy objectives of government of the day, irrespective of poitical views of its officers
Neutrality and Reservations
Neutrality:
Neutrality is important to
maintain continuity of public administration
when there's change in government
Convention of ministerial responsibility
serves to protect it from political debates on proprietary of government policy
They maintain neutrality by observing rule that public servants can't take up political appointments/positions in Legislature (federal and state)
They refrain from commenting on
policy
decisions
Certain safeguards applicable to these Commissions namely:
Discretion given to YDPA in making appointments to Public Service Commission and Education Service Commission - Art 139(4)
Public Service Commission and Education Service Commission - Art 139(4), Art 141A(2)
No member fo any Legislature may be appointment thereto - Art 142(1)
But Government's control over appointments to most of these Commissions = not really independent
Government also can secure preferred nominees to senior civil servants
Reservations & Equality in Public Services:
Art 153(2) - YDPA shall safeguard special position and native communities of Sabah and
reserving reasonable portion of positions in federal Public Service
for these communities
Art 153 - YDPA can issue general directions needed to Services Commissions listed in Part X of FC
But in Art 136 says that all persons
of whatever race
in same grade
in service of Federation
will be treated impartially (subject to t/c of employment)
Thus
entry
in Public Service can be restricted on quota basis but once in public service, all must be treated fairly
State Constitution repeat similar arrangement on State Public Service
Organisation
Due to variety of roles, Public Service employs individuals from different specialisation and educational backgrounds
Governed by Standing Orders (Arahan Tetap), Service Circulars (Pekeliling Perkhidmatan) and General Orders (Arahan Am) issued from Chief Secretary and Public Service Department
All per
Art 132(2)
They are ranked according to
Grades
Higher the grate - more authority = benefits of public servant
Usually retire age 60 (fixed) but early retirement possible and beyond 60 also possible on a contractual basis
State Public Services:
Regulated by their respective State Public Service Commission (except Melacca, Penang, Perlis and Negeri Sembilan where public services is regulated by federal Public Service Commission
Role of State Public Services is implement law and policy in all areas in State executive jurisdiction (Art 80, 81 FC)
Individual Public Servants:
Per common law
(UK)
:
civil servants hold office at pleasure of the Crown
- no entitlement to their offices and Crown may theoritically dismiss servants without giving reasons at all. In Malaysia its 'at the pleasure of YDPA'
In
Malaysia
: terms of public service are special, employer/employee are
not based on consent of parties alone but on statute and/or administrative rules governing the Public Service
Doctrine of Pleasure in Ridge v Baldwin per Lord Ried:
Purely contractual situation:
court will consider whether dismissal is accordance with contract
no consideration of natural justice
Office held during pleasure / "master and servant:
no contract of service - office holder appointment to office and holds office "during pleasure" of master. Public/civil servants fall into this category
No cause need to show to dismiss public servant = dismiss with no right of hearing
Office held during good behaviour:
Normally created by statute / by Constitution. Judge and members of constitutional commission like Electoral Commission are in this category
Office holders in this category only dismissed for just cause. Must have reasons for justifying dismissals
Constitution allowed certain protections for individual public servants:
They can't be dismissed / reduced in rank unless reasonable opportunity to be heard -
Art 135(2)
They cant be dismissed / reduced in rank by authority that is subordinate to authority having power to appoint someone of equal rank in service at the time -
Art 135(1)
Members of general, state or joint public services enjoy degree of protection from disciplinary action when exercising judicial functions by law -
Art 135(3)
The A.G
AG's office, duties and powers as per
Art 145
FC
YDPA on advice on PM will appoint
a person qualified to be a judge of FC
to be AG for Federation - Art 145(1)
Wide powers of the AG:
Powers of AG are very wide as been in cases
But position of AG not constitutionally protected at same extent of senior judiciary
Art 145(5) FC the AG holds office at pleasure of YDPA so can be dismissed on advice of PM
PP v Long bin Samat (1974)
PP v Johnson Tan Han Seng (1977)
PP v Lee Tin Bau (1985)
Repco Holdings v PP (1997)
Role of AG:
A special category of public servant where employment, powers and line of reporting is different from other public servants
AG heads Judicial and Legal Services, is also an ex officio member every Pardons Board per Art 42(5), Judicial and Legal Service Commission per Art 138 and Legal Profession Qualifying Board (chairs)
Must advice YDPA/Cabinet/Minister on legal matters referred to him
Perform other duties of legal character assigned to him
Discharge functions conferred to him by FC and other written law
AG has power to institute, conduct / discontinue proceedings for an offence, other proceedings before a Syariah court/native court/court-martial
Art 145(3A) - Federal law can confer AG to determine venue of any proceedings he has power to institute or which shall be transferred
AG can be politician/non-politician and can appoint senior government officials, private practitioners / serving Judges
AG will be PP and will have control + direction of all criminal prosecutions and proceedings under Criminal Procedure Code 376(1)
AG can appoint DPP and exercise powers of PP exercised by PP personally
AG has right of audience in any court proceedings in the Federation
Service Commissions
Established under Constitution to regulate respective services:
Armed Forces Council - Art 137(1)
Judicial and Legal Services Commission - Art 138(1)
Public Services Commission - Art 139(1)
Police Force Commission Art 140(1)
Education Services Commission Art 141A(1)
Each of these Commissions need to make an annual report of their activities laid before Parliament - Art 146(1)
Member of Commission are not considered as public servants - Art 132(3)(d)
Role of the Service Commissions:
To appoint, confirm, emplace on permanent / pensionable establishment, promote, transfer and exercise disciplinary control on members of their respective Services
YDPA can designate 'special posts' where they are appointed directly by YDPA on recommendation - Art 144(3)
Appointment:
Members are either ex-officio service public servants or appointed by YDPA
YDPA has discretion in appointment of public Service Commission but must "consider advice of PM" and Conference of Rulers
Conference of Rulers has 1 representative on Arm Forces
They are usually appointed to renewable 5-year terms + during their term of appointent they enjoy security of tenure and remuneration
Constitutional Protection for Public Servants
Art 135(1) and (2) - Restrictions on dismissal and reduction in rank
Art 136 - Requirement for impartial treatment of Federal employees
Art 142, 143 & 144 - The role of the Service Commissions and the safeguards provided for independence of these Commissions
Art 147 - Protection of pension rights
Purpose for Constitutional Protection:
To preserve as far as possible the independence of holders of public office against victimisation by their superior officers/politcal masters
'Public offices are more than just jobs'
Reference to 'law' refer to system of law that incorporates fundamental rules of natural justice
Protections:
Art 135(1) - Protection against dismissal / demotion by subordinate authority
1st proviso - State Legislatures (other than Penang and Melacca) can establish separate Board appointed by Ruler to dismiss / discipline State public servants
2nd proviso - Commission can delagate power of dismissal and discipline to any separate authority
Art 135(2) - Right to be hard being dismissed / demoted
1st proviso - 4 situations are provided where right to be heard doesn't apply
2nd proviso - when public servant's employment terminated under law/regulation in force, such termination won't constitute dismissal
Scope:
Contract and casual/temporary employees of the Government are
not protected by provisions of Art 135.
Their employment is safeguarded only by terms of employment
Government of Malaysia v Lionel (1974)
Haji Ariffin v Government of Pahang
Pengarah Pelajaran Wilayah Persekutuan & Ors v Loot Ting Yee (1982)
Dismissing Authority:
Art 135(1) requires dismissal by a valid authority competent to appoint. As no power of appointment was valid, he was delegated power of dismissal only, purported dismissal void, inconsistent with Art 135(1)
Isman bin Osman v Government of Malaysia (1973)
Surinder Singh Kanda v The Government of the Federation of Malaya
Reasonable Opportunity to be Heard:
Essential for public interest that the Crown should not be hampered in dismissing a servant whose continuance in office it deems detrimental to the best interest of the State
Suffian LP held that provided Art 135 is complied, a public servant's employment can be terminated at pleasure of the Crown
Government of Malaysia v Mahan Singh (1975)
Natural Justice:
General Rule - in a disciplinary hearing against a public servant is that a person directly affected must be given a fair opportunity to state his/her case and to know and answer the case against him
'Fair opportunity' can be via written representations (arguments), oral representations / mix of both
Protection of Pension Rights:
Art 147(1) protects pension entitlement of members of public services on pension shceme
they are applicable to any pension, gratuity / other like allowances granted to member of public service / widow, children, dependent or personal representatives shall be in force on relevant day or any later law not less favourable to that person
Conclusion
Public Services is very important element of the administration
They are constitutionally regulated body of 'public servants' where theire role is dependent of policies decided by government of the day
They are independent and owe loyalty to YDPA and government of the day
Independence must be safeguarded by establishment of independent Service Commission for respective Public Services under FC