Public servants sacked due to criminal conviction have no right to be heard, court rules

Public servants dismissed from service due to criminal conviction or detention under preventive laws do not have a right to be heard in disciplinary proceedings, the Federal Court ruled.

Court of Appeal president Tan Sri Md Raus Sharif said Article 135 (2)(a) and (b) of the Federal Constitution took away a person's right to be heard under those circumstances.

Raus chaired a five-man panel on Tuesday to decide on the case of former police Chief Inspector Mohd Azuan Aniffa who was detained for two years from 2006 under the repealed Internal Security Act (ISA) 1960.

The panel had allowed the appeal brought by the Bukit Aman police disciplinary board chairman, inspector-general of police and the Malaysian government.

The court overturned the High Court and Court of Appeal's decisions to reinstate Mohd Azuan, 48, in service and to give him payment for backdated salary.

Mohd Azuan had brought his matter to court after he was dismissed from service effective Nov 26, 2008 on grounds that he was denied the right to be heard.

In his 19-page written judgment, Raus said based on the facts and circumstances, it was clear that the intention of the disciplinary authority, on recommendation by the head of department, was to dismiss Mohd Azuan because of a criminal conviction.

He said there were errors in quoting the regulations in the suspension and dismissal letters but the errors were insufficient to vitiate the disciplinary board's decision to dismiss Mohd Azuan from service.

"The respondent (Mohd Azuan) was dismissed due to the detention order that was made against him. The suspension letter no doubt quoted Regulation 28 instead of Regulation 45, but the contents of the letter made it explicitly clear that the respondent was suspended as a result of the order made against him under Section 8 of the ISA," he said.

Raus said the disciplinary authority was empowered by the 1993 Regulations to suspend and dismiss Mohd Azuan.

Senior federal counsel Shamsul Bolhassan and Maisarah Juhari apppeared for the appellants, while lawyers G. Subramaniam Nair and Ebrina Zubir represented Mohd Azuan.