Removal of security of tenure of government servants

(Speech by the Parliamentary Leader, DAP Secretary-General and Member of Parliament for Petaling, Lim Kit Siang, in the Dewan Rakyat on the 1978 Constitution Amendment Bill on December 8, 1978)

Again, Parliament has been presented with another batch of proposed amendments to the Malaysian Constitution, relating to provisions on membership of the Senate, the rights of members of the public service on certain matters, membership of the Education Service Commission and legislation against “subversion and action prejudicial to public order”.

The proposed amendment to Article 135(2), which guarantees that no public servant would ever be arbitrarily dismissed, tantamounts to abolition of this guarantee.

I have followed with great care the speech by the Prime Minister, Datuk Hussein Onn, yesterday when moving the second reading of the Constitution Amendment Bill explaining why the government wants to amend Article 135(2) and take away this fundamental right of 500,000 civil servants; and why, with his legal background and training, he is asking Parliament to do a most obnoxious thing which undercuts the whole basis – that is, asking for its retrospective legislation all the of the Rule of Law-way back to Merdeka Day in 1957.

I have found the Prime Minister’s arguments for wanting to amend Article 135(2) most unsatisfactory and unconvincing. As for government intention to give retrospective effect to this amendment, the Prime Minister had not furnished a single valid reason at all.

Article 135 of the Constitution reads:

“(1) No member of any of the services mentioned in paragraphs (6) to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank.

“(2) No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard.”

Article 132 Clause 1(b) to (h) specifies the services as:

(b) the judicial and legal services;
(c) the general public service of the Federation;
(d) the police force;
(e) the railway service;
( f) the joint public services mentioned in Article 133;
(g) the public service of each state; and
(h) the education service.

The Prime Minister has admitted that this proposed amendment was the government’s reaction to its reversal in the Privy Council in the case of Mahan Singh v. Government of Malaysia on June 22, 1978.

During the Emergency in July 1969, under Emergency (Essential Powers) Ordinances No. 1 and No. 2 of 1969, the Director of Operations the late Tun Razak, enacted Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations, 1969 – or Regulation 44 of General Orders Chapter D- to enable the Government to terminate the services of any official without resorting to disciplinary proceedings.

Mahan Singh, then with the Office of the Special Commissioners of Income Tax and Sessions Court Registrar from 1961-1969, was informed in 1970 that his services had been terminated under Regulation 44.

Mahan Singh sued the Government, arguing that he had been dismissed within the meaning of Article 135 and as no reasonable opportunity had been given to him to be heard, his dismissal was unconstitutional and void. In the High Court, Narain Sharma J, held that government had acted unconstitutionally in bringing Mahan Singh’s employment to an end. The Government appealed to the Federal Court and succeeded. The matter was taken up to the Privy Council which, on June 22, 1978, restored Sharma. J’s judgement and held that the Government had acted unconstitutionally.

I am most shocked when the Prime Minister said yesterday that the Privy Council had ‘misinterpreted Article 135, for he appeared to have arrogated to himself the role of a Super-Judge, higher than the supreme appellate court in our judicial system. His remarks that the Privy Council having ‘misinterpreted’ Article 135, and the current proposal to nullify the Privy Council decision by amending Article 135 to exclude its operation in cases like the operation of Regulation 44, have dealt a grievous blow to the concept of Rule of Law, especially as it has emanated from the Prime Minister, who had strenously built up an image of fullest respect to the Rule of Law.

In trying to justify Regulation 44 (which in effect allows the Government to sack civil servants without having to give reasons), Datuk Hussein Onn said that extra powers apart from the usual disciplinary provisions in the General Orders are needed to deal with corrupt and dishonest officials.

As an example, Datuk Hussein Onn had cited an example where an official had accumulated property worth about $50,000 in a short time, another official who had a substantial bank balance, indicating that an element of corruption was involved, but “yet sometimes the disciplinary authorities would find it difficult to dismiss the official concerned.”

The problem of corruption in the public service is indeed a very serious problem, and stern action must be taken to stamp out graft in all its forms. But unfortunately, the proposed amendment of Article 135(2) is not a proper or satisfactory solution to the problem of public officials having income.

For firstly, this problem of public officials amassing property or pecuniary resources disproportionate to their known sources of income is not a problem confined only to civil servants, but is also wide spread of income among top political leaders of the ruling party at national and state level.

Are Ministers, Deputy Ministers, Parliamentary Secretaries, Political Secretaries, Mentri Besar, Chief Ministers, State Executive Councillors, Members of Parliament and State Assemblymen who amass property or pecuniary resources disproportionate to their known sources of income to be immune from anti-corruption purges and prosecutions?

Is there in the battle against corruption, to be one law for government servants, but a different law for Ministers, Deputy Ministers, Parliamentary Secretaries, Chief Ministers, Mentri Besar and State Executive Councillors?

The problem of unaccounted wealth disproportionate to a person’s known sources of income, whether among civil servants or political leaders, can be easily countered by a simple amendment to the Prevention of Corruption Act 1961 making it an offence for any public officer, including Ministers, Deputy Ministers, Parliamentary Secretaries, Chief Ministers, Mentri Besar, Exco Members, MPs and State Assemblymen and of course civil servants who had amassed property or pecuniary resources dis- proportionate to his known source of income, and providing powers to the Court to order forfeiture of the property or value of the pecuniary resources acquired by the accused.

In 1975, I had moved a motion in Parliament to effect such an amendment, but it was defeated by the Barisan Nasional Ministers and MPS. Now, it appears that the Prime Minister is concerned about unaccounted wealth among civil servants. But why is he indifferent to the problem of unaccounted wealth among top political leaders?

Datuk Hussein Onn said that the government needs extra powers to deal with dishonest officers, like those who are marking time. Clearly this is a case for normal disciplinary action, rather than extraordinary powers of forced retirement. Again, Datuk Hussein mentioned another category as those officers who had, for instance, clearly disclosed government secrets or carried on activities detrimental to national security.

If government servants have clearly committed such infractions, then they should be subject to normal disciplinary procedures, and not be arbitrarily sacked.

The amendment to Clause 135(2) reads:

“Where the services of a member of such a service is terminated in the public interest under any law for the time being in force, or under any regulation made by the Yang di-Pertuan Agong under Article 132(2), such termination of service shall not constitute dismissal whether or not the decision to terminate the service is connected with the misconduct or unsatisfactory performance of duty by such member in relation to his office or the consequences of the termination involved an element of punishment; and this proviso shall be deemed to have been an integral part of this Article as from Merdeka Day.”

This amendment in effect takes away the security of tenure and constitutional guarantee of civil servants that they would not be subject to arbitrary dismissal without being given an opportunity to be heard. This amendment tantamounts to repeal of Article 135.

If the Government has a good case to dismiss a civil servant, they would apply Article 135(2) and give the officer an opportunity to be heard. If the Government does not have a good case, it could still sack the officer by applying the amendment to Article 135(2) which we are being asked to enact today.

The Government clearly wants to put itself in a situation of ‘heads I win, tails you lose’.

What is shuddering about this amendment is that it opens up a Pandora’s box for victimisation of subordinate officials by the heads of department.

Datuk Hussein Onn said that so far, 96 officials had their services terminated under Regulation 44.

This is not a small figure. Under Regulation 44 there is no machinery to challenge the charges preferred against the government official. He may not even know the reasons for which he was being dismissed, for his right to be heard has been completely wiped out.

What is worse a government official whose services are terminated will immediately be under a cloud that he had either been found to be corrupt or dishonest, although it could be neither.

It is no exaggeration when the CUEPACS in its protest against this amendment said that the amendment to Article 135(2) would erode the meaning given to the word ‘dismissal’. In fact, I had said that this amendment virtually meant the repeal of Article 135(2).

The proposed amendment to Article 135(2) is even more objectionable because it is proposed to give it retrospective effect all the way back to Merdeka Day on 1957.

Retrospective legislation is highly obnoxious and objectionable for it makes legal what was illegal when done. It undermines public respect for the Rule of Law.

In Malaysia, it appears to have become the habit for the Government to enact retrospective constitutional amendments. In the 1976 batch of amendments to the Constitution on July 12, 1976, there were four amendments which had retrospective effect.

Retrospective constitutional amendments which deprive a person of an accrued right is bad enough, but in Malaysia, the Government is also resorting to the deplorable practice of interfering with the judicial process by enacting retrospective constitutional amendments when litigation is under way.

The Government is not only nullifying judgments of the Privy Council, it is developing a habit of amending the Constitution although litigation is before the courts to win what the Government otherwise would lose in the courts.

The Privy Council had occasion to pass a caustic comment on this deplorable practice to usurp the functions and powers of the courts. In the case of Iznan bin Osman v. Government of Malaysia, dismissal of a police constable by the Chief Police Officer was held null and void by both High Court Judge Sharma, and the Federal Court on the ground that the CPO and no powers to dismiss the constable. The Government appealed to the Privy Council, and at the same time, before the case came up for hearing by the Privy Council, amended Article 135 of the Constitution in July 1976 to give powers to the CPO to dismiss members of the police force, and this amendment was given retrospective effect to Merdeka Day in 1957.

When the case went up to the Privy Council, and the Government urged on the Privy Council the new constitutional amendment, the Privy Council said that “This attempt to deprive a litigant of a right of property by retrospective legislation passed pendente lite (when there is pending litigation) is a step of a most unusual character.”

The Government’s penchant to use its Parliamentary majority to change laws in the midst of litigation to favour the Government is a most unhealthy precedent and practice.

I want to ask the Prime Minister why this amendment to Article 135(2) should be made retrospective to Merdeka Day 1957.

As far as I know, there are only seven cases pending litigation awaiting the outcome of the Mahan Singh v. Government of Malaysia judgement at the Privy Council as a test case. And the maximum that the government pay by way of compensation to these seven cases (as the other cases are time-barred) is only in the region of $500,000.

For half a million dollars, is it worth incurring the opprobrium of enacting retrospective legislation and undercutting the basis of the Rule of Law in the country, giving the people the image of an unreasonable, unfair government and giving the world the reputation of not only having a

Constitution which is amended most number of times, but also with the most number of retrospective legislation?

Here, I would like to ask the Prime Minister that as the amendment of Article 135(2) was with the view to make legal Regulation 44 of General Orders Chapter D, enacted in July 1969, why is the Government asking for retrospective effect all the way back to 1957? Are there other laws and regulations which have been made between 1957-1969 which discipline of government servants which are also illegal and unconstitutional, and now needs legalisation and regularisation?

Call on Datuk Hussein Onn to lift the emergency of 1966 and 1969

We are asked to amend a constitutional provision to validate regulation made under emergency conditions in 1969. A Proclamation of Emergency should be made to deal with a specific emergency, and when that specific emergency had ended, the state of emergency should be ended.

If new emergency conditions require a new emergency being imposed, then a fresh Proclamation of Emergency should be made.

But it is a gross abuse of emergency powers to make use of say the 1969 Proclamation of Emergency proclaimed because of the May 13 riots to deal with completely different problems 10 years later, like what we are now discussing, disciplining government servants.

I understand that the 1964 Proclamation of Emergency because of Indonesian Confrontation is still effective.

I would call for a return to the Merdeka Constitution of 1957 which provided that a Proclamation of Emergency automatically ceased to be force at the end of two months after its issue, and an Ordinance promulgated by the Yang di Pertuan Agong at the end of 15 days from date on which both Houses are sitting, unless before that period it had been approved by resolution of each House, so that we do not live permanently in an emergency.

In view of the drastic inroads this constitutional amendment will make into fundamental rights of 500,000 civil servants, the DAP cannot give its support.

Call for abolition of ISA

The proposed amendments to Part XI heading and Article 149 to of expand the scope for the enactment of detention without trial laws must be viewed with great suspicion and distruct, because of the long record of innocent Malaysians who have been detained for prolonged periods without the benefit of trial although they had committed no offence or crime against the country.

Even now, the Government claims that in Malaysia there are no political detainees, although the whole country and the world knows that political detention has long become a facet of Barisan Nasional rule, and political control.

The Government should respect human rights of Malaysians and release all political detainees in Kamunting and Batu Gajah detention camps or charge them in open court, to give them a chance to defend themselves.

The use of detention without trial laws has become an instrument of oppression of the government to suppress courageous and dedicated Malaysians who are prepared to sacrifice personal liberties for a better Malaysia for the people and future generations.

Instead of constantly finding ways and means of ending this denial of human rights through detention without trial in Malaysia, the Government now wants to expand the scope of such powers by including new categories for which the Government can detain people without trial indefinitely.

Thus there is to be a new paragraph (e) in Article 149(1) which empowers the Government to take actions under laws which conflict with the fundamental liberties enshrined in the Constitution on liberty of the Person, freedom of speech, peaceful assembly and association, if the Government perceives that there are people who have taken or threatened action “prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof” and a new paragraph (e) which is “prejudicial to public order in, or the security of, the Federation or any part thereof.”

As these provisions vest very extensive powers on the Government legislators are duty bound to know what categories of situations a envisaged in paragraphs (e) and (f). Is the Government going to detain without trial workers for instance, who go on strike, which affect the “functioning of any supply or service to the public or any class of the public”? Will this cover public service unions and also private sector unions?

Will for instance bank employees who are members of NUBE be likely to be detained without trial should they go on strike in their disputes with banks?