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Safeguards for public servants
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
The legal position of public servants regarding security of tenure of service is quite vulnerable, but in reality, action against delinquent public servants is notoriously difficult to sustain.
MODERN society is held together by services provided by officials of the state. The public service is the pivot around which the administration of the contemporary state revolves. Every country’s economic, social and educational policies are ultimately dependent on the quality and commitment of its public officials.
Article 132(1) of the Federal Constitution defines “public services” to include the armed forces, the judicial and legal service, the general public service of the Federation, the police force, the joint federal-state public service, the public service of each state and the education service.
Employees of statutory bodies, public companies, universities, or any other body or authority established under federal or state law, are not public servants for the purpose of the Constitution.
In relation to public services, a number of basic rules apply.
No security of tenure: All public servants hold office “during the pleasure” of the Yang di-Pertuan Agong or Ruler or Governor. Posts may be abolished. A ministry or service may be closed down or privatised. Parliament may refuse to allocate funds for a service.
Terms of service: The terms of service of a public servant may be altered without his consent despite a written contract of employment. Post-entry requirements like language proficiency, in-house training courses or the need to pass an examination may be imposed.
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.
Exceptions: The safeguards of Article 135(2) do not apply in some situations such as:
> The laudatory and constitutionalised rule of natural justice does not apply to forms of removal that do not amount to “dismissal” or “reduction in rank”.
For example, “dismissal” is distinguishable from “contractual termination”, “termination in public interest” or “compulsory retirement”.
A reversion to the former post does not amount to reduction in rank provided the public servant was not already confirmed in his new post.
> “The right to be heard” does not imply the right to be heard orally. Hearing can be oral or by way of written representation.
> Members of the armed forces are not entitled to a hearing.
> There is no need to give a hearinIn reality there are many other ways of dealing with errant civil servants. Some of these ways do not attract the pristine safeguards of Article 135. For example:
> Even prior to a finding of guilt, an officer can be interdicted (ordered not to report for work) on full pay or half pay.
> In several circumstances, an officer can be suspended on no pay.
> Termination under the contract of employment need not be preceded by prior hearing.
> In some circumstances public servants can be prematurely and compulsorily retired. They recieve pension but lose their job.
The overall picture is that the legal position of public servants is quite vulnerable. In reality, however, action against delinquent public servants is notoriously difficult to sustain.
Many wrongdoers rely on technical or procedural flaws to obtain judicial review and escape accountability.
Enforcing quality and commitment in public services is not easy and require leadership of the highest order.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM
Every 3 taxpayers supports 2 civil servants in Malaysia
The best civil servants in the world-MALAYSIA BOLEH
MODERN society is held together by services provided by officials of the state. The public service is the pivot around which the administration of the contemporary state revolves. Every country’s economic, social and educational policies are ultimately dependent on the quality and commitment of its public officials.
Article 132(1) of the Federal Constitution defines “public services” to include the armed forces, the judicial and legal service, the general public service of the Federation, the police force, the joint federal-state public service, the public service of each state and the education service.
Employees of statutory bodies, public companies, universities, or any other body or authority established under federal or state law, are not public servants for the purpose of the Constitution.
In relation to public services, a number of basic rules apply.
No security of tenure: All public servants hold office “during the pleasure” of the Yang di-Pertuan Agong or Ruler or Governor. Posts may be abolished. A ministry or service may be closed down or privatised. Parliament may refuse to allocate funds for a service.
Terms of service: The terms of service of a public servant may be altered without his consent despite a written contract of employment. Post-entry requirements like language proficiency, in-house training courses or the need to pass an examination may be imposed.
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.
Exceptions: The safeguards of Article 135(2) do not apply in some situations such as:
> The laudatory and constitutionalised rule of natural justice does not apply to forms of removal that do not amount to “dismissal” or “reduction in rank”.
For example, “dismissal” is distinguishable from “contractual termination”, “termination in public interest” or “compulsory retirement”.
A reversion to the former post does not amount to reduction in rank provided the public servant was not already confirmed in his new post.
> “The right to be heard” does not imply the right to be heard orally. Hearing can be oral or by way of written representation.
> Members of the armed forces are not entitled to a hearing.
> There is no need to give a hearinIn reality there are many other ways of dealing with errant civil servants. Some of these ways do not attract the pristine safeguards of Article 135. For example:
> Even prior to a finding of guilt, an officer can be interdicted (ordered not to report for work) on full pay or half pay.
> In several circumstances, an officer can be suspended on no pay.
> Termination under the contract of employment need not be preceded by prior hearing.
> In some circumstances public servants can be prematurely and compulsorily retired. They recieve pension but lose their job.
The overall picture is that the legal position of public servants is quite vulnerable. In reality, however, action against delinquent public servants is notoriously difficult to sustain.
Many wrongdoers rely on technical or procedural flaws to obtain judicial review and escape accountability.
Enforcing quality and commitment in public services is not easy and require leadership of the highest order.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM
Every 3 taxpayers supports 2 civil servants in Malaysia
“The highest ratio of civil servants in the world”!
Most bloated civil service
Most bloated civil service
* With 1.3 million civil servants to a population of 26 million, Malaysia has one of the highest civil servants-to-population ratio in the world by the Organisation for Economic Cooperation and Development standards.
* In 2009, Malaysia’s civil servants-to-population ratio was the highest in Asia Pacific. The ratio was 4.68 per cent, compared to Singapore’s 1.5 per cent, Indonesia’s 1.79 per cent, Korea’s 1.85 per cent and Thailand’s 2.06 per cent all of which have less than half our ratio.
Subject: Civil Servants in Malaysia...Alarming Figures 1. Number of civil servants in Malaysia 2000 - 894,788 2008 - 1.2M 2011 - 1.3M+ During 2000 to 2008, increase of 300,000 or each year 38,151 or each day 104. 2 . Money spent on salary / remuneration 2005 - RM25.6Billion 2008 - RM41.0Billion (or from each tax payer RM22,800) An increase of a whopping 60% during 3 years only. If it is private company, sure "bungkus"! 3. Population that pays tax 1.8M Number of civil servants 1.2M Meaning every 1.5 tax payer support 1 civil servant. 4. Population Vs number of civil servant. (I believe should be one of the highest in the world) |
% | ||
Malaysia | 4.68 | |
Thailand | 2.06 | |
Korea | 1.86 | |
Philippine | 1.81 | |
Indonesia | 1.79 | |
Laos | 1.24 | |
Cambodia | 1.18 |
The best civil servants in the world-MALAYSIA BOLEH
Related articlesBest bloated civil service
* With 1.3 million civil servants to a population of 26 million, Malaysia has one of the highest civil servants-to-population ratio in the world by the Organisation for Economic Cooperation and Development standards.
* In 2009, Malaysia’s civil servants-to-population ratio was the highest in Asia Pacific. The ratio was 4.68 per cent, compared to Singapore’s 1.5 per cent, Indonesia’s 1.79 per cent, Korea’s 1.85 per cent and Thailand’s 2.06 per cent all of which have less than half our ratio.
Best way to bleed a budget dry
* Much of the budget (2011) continues to go into operating a bloated civil service. As much as three quarters of the national budget is spent on paying salaries and other benefits to over 1.3 million civil servants.
* A post-2011 Budget dialogue highlighted the massive amount (35 per cent of the total RM162.8 billion operating expenditure) to be spent on emoluments, pensions and gratuities of civil servants. A panelist, Ministry of Finance budget division director Datuk Dr Rahmat Bivi Yusuff admitted that there is a need to trim the civil service to reduce the budget deficit.
Best way to bankrupt this nation
* Whilst it is the growing trend of many countries to reduce their civil service, the PM’s Department in particular, has done the opposite. It more than doubled its number of civil servants from 21,000 to 43,554 this year. In stark contrast, the White House employs only 1,888 staff.
* The White House budget is US$394 million for 2011. The PM’s Department has been allocated a whopping RM18.14 billion for the year 2011, almost double the RM10.2 billion 2010.
* Pemandu, which stands for Performance, Management and Delivery Unit, was set up last year under the Najib administration as one of the pillars in his Government Transformation Plan… is a massive drain on resources. In a span of two months the government spent RM20 million just to pay 50 consultants,.
Best contradiction of 1Malaysia
* As at 31 December 2009, the racial breakdown of the Malaysian civil service comprising 1,247,894 employees was as follows: Malay (78.2 per cent); Other Bumiputras (7.7 per cent); Chinese (5.8 per cent), Indian (4.0 per cent); and Others (4.2 per cent).
* “This is the worst multi-racial composition of the government service, with the lowest Chinese and Indian representation in the public service in Malaysia’s 53-year history. This is clearly seen from the three sets of comparative figures of the racial breakdown of the civil service before the NEP (1971) and as compared to Dec. 2009 – Malays (60.80 per cent and 78.2 per cent); Chinese (20.2% and 5.8 per cent); Indians (17.4 per cent and 4.0 per cent); and Others (1.6 per cent and 4.2 per cent).
Best in corruption
* Last year two out of five civil servants were deemed corrupt by Cuepacs. It was described as a worrying trend that needed to be tackled urgently.
* Cuepacs President Omar Osman revealed that a total of 418,200 or 41 per cent of the 1.2 million civil servants in the country were suspected to be involved in corruption last year (Bernama, 2 June 2010).
Best “dumping ground”
Mohd Ariff Sabri Abdul Aziz, a former state assembly member of Pahang who is a member of Umno and who uses the pen-name Sakmongkol AK47, in his blog entry wrote: “Government service shouldn’t be treated as a dumping ground for academic rejects and mediocre material. Let’s demand a certain high standard and ensure we bring in talent that supports the demand for high standards.
“What has the government done to improve the efficiency and competence of government servants? There isn’t really competition there if the service is dominated by one race. There isn’t sufficient quality if the entry-level qualifications are so-so.
“Yet each year, to placate civil servants, the PM will appear on TV to say, we honour our civil servants because they have done a good job, blah blah. Which is not entirely true. The service is slow, the quality of officers is questionable.”
But Umno likes Muhyiddin’s make-believe. The next General Elections must be close at hand. Civil servants are made to believe that Umno is their (political) paymaster and they owe it to Umno. The party’s leaders would do or say anything to convince the government servant of this, even praising them as “the best civil servants in the world”!
