Lembaga Tatatertib Polis Diraja Malaysia v Mohd Idzuddin Bin Mazli (W-01(A)-326-05/2024)

1 RAYUAN SIVIL NO: W-01(A)-335-05/2024

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3. … DAN MOHD AIMAN BIN BALPAKI ... (NO. RF 184951, NO. K/P: 910226-05-5411) DIDENGAR BERSAMA RAYUAN SIVIL NO: W-01(A)-326-05/2024

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3. … DAN 14/05/2026 11:39:23 W-01(A)-326-05/2024 Kand. 42 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 MOHD IDZUDDIN BIN MAZLI … (NO. RF/S 15493, NO. K/P: 83070408-5771) DIDENGAR BERSAMA RAYUAN SIVIL NO: W-01(A)-336-05/2024

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3. … DAN MOHAMAD SUFIAN BIN ABDUL HAMID … (NO. RF 187166, NO. K/P: 911112702-5721) CORUM AZIZAH BINTI NAWAWI, CJSS AZIZUL AZMI BIN ADNAN, JCA AZMI BIN ARIFFIN, JCA JUDGMENT **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Introduction [1] These appeals arise from three judicial review (“JR”) applications that was heard together. The applications were filed by the three Respondents (applicants in the High Court), that is Mohd Aiman Bin Balpaki (Appeal 335/JR No. 28), Mohd Idzuddin Bin Mazli (Appeal 326/JR No. 29), and Mohamad Sufian Bin Abdul Hamid (Appeal 336/JR No. 30). [2] All three Respondents were members of the Royal Malaysia Police (“PDRM”) and were subjected to disciplinary actions by the PDRM Disciplinary Board (“DB”) for various charges of misconducts. The DB had found the respondents guilty of the disciplinary charges and issued sentences ranging from warnings to dismissal from service. [3] The learned Judge has allowed the judicial review applications and quashed the disciplinary decisions by the DB of PDRM and ordered the respondents to be reinstated to their respective positions prior to their dismissal. The Salient Facts [4] The Respondents, Aiman, Idzuddin and Sufian joined the PDRM in 2012, 2004 and 2014 respectively. Prior to their dismissal, Aiman and Sufian was a Lance Corporal, whilst Idzuddin was a Support Corporal. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [5] Via separate letters dated 6 July 2022 (“show cause letters”) issued to the Respondents, disciplinary proceedings with a view to dismissal or reduction in rank were instituted against them pursuant to Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 (“1993 Regulations”). In this regard, Aiman faced ten (10) disciplinary charges, Idzuddin faced six (6) disciplinary charges, and Sufian faced seven (7) disciplinary charges. [6] The Respondents faced similar/common charges in respect of the First to the Sixth Charges, which may be summarised as follows:

(ii) 2nd Charge – On 16 October 2021, at 3.00 p.m. until 11.00 p.m., the Respondents failed to report to the supervisor or the Officer in-Charge of Sri Hartamas Police Station, Brickfields District Police Headquarters, Kuala Lumpur about the arrest and inspection of the four (4) foreign citizens at Jalan Kiara, Kuala Lumpur, in contravention of instruction in PTKPN A110 paragraph 33.1.20 – a disciplinary offence of being **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 insubordinate under Regulation 4(2)(i) of the 1993 Regulations.

(iii) 3rd Charge – On 16 October 2021, at 3.00 p.m. until 11.00 p.m., the Respondents failed to report to the Control Centre of the Brickfields District Police Headquarters, Kuala Lumpur about the arrest and inspection of the four (4) foreign citizens at Jalan Kiara, Kuala Lumpur, in contravention of instruction in PTKPN A110 paragraph 33.1.38 – a disciplinary offence of being insubordinate under Regulation 4(2)(i) of the 1993 Regulations.

(iv) 4th Charge – On 16 October 2021, at 3.00 p.m. until 11.00 p.m., the Respondents did not make any entry in the Station Diary (PDRM (A) 40) about the arrest and inspection of the four (4) foreign citizens at Jalan Kiara, Kuala Lumpur, in contravention of instruction in PTKPN A110 paragraph 33.1.40 – a disciplinary offence of being insubordinate under Regulation 4(2)(i) of the 1993 Regulations.

(4) foreign citizens at Jalan Kiara, Kuala Lumpur, in contravention of instruction in PTKPN A110 paragraph 33.1.40 – a disciplinary offence of being insubordinate under Regulation 4(2)(i) of the 1993 Regulations. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

(vi) 6th Charge – On 16 October 2021, at 3.00 p.m. until 11.00 p.m., the Respondents failed to lodge a police report on the arrest and inspection of the four (4) foreign citizens at Jalan Kiara, Kuala Lumpur, in contravention of instruction in PTKPN A110 paragraph 33.1.40 – a disciplinary offence of being insubordinate under Regulation 4(2)(i) of the 1993 Regulations. [7] The Respondents were given 21 days from the receipt of the show cause letter to furnish their representation to exculpate themselves from the charges. Aiman, Idzuddin and Suffian submitted their respective written representation on 4.8.2022, 26.7.2022 and 25.7.2022 respectively. [8] In his letter of representation, Idzuddin did not dispute the above disciplinary charges, but stated that he had acted on the instruction of his ‘Penyelia’, Aiman. In their letters of representations, both Aiamn and Suffian did not dispute the disciplinary charges but stated that they did not have time to prepare the relevant and necessary reports as, inter alia, there were not enough details of the immigrants. [9] Via the 1st Appellant’s letters dated 16 November 2022, the Respondents were respectively informed that the 1st Appellant had carefully considered their representations, found them guilty of the First to Sixth Charges, and imposed the punishment of dismissal in respect of those charges, with effect from 16 November 2022. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Decision of the High Court [10] The learned judge ruled in favour of the Respondents and quashed the decisions made by the DB of PDRM in all three judicial review applications (JR No. 28, JR No. 29, and JR No. 30). [11] The decision of the learned Judge can be found in the following paragraphs of the Judgment: “[41] For the aforesaid reasons, my findings are as follows:

(ii) the courts will not interfere merely because they may have arrived at different conclusions on the facts based on the same evidence;

(iii) the courts cannot rehear the case by re-weighing or reassessing the evidence, as the evaluation of evidence lies within the exclusive province of the disciplinary authority; and

(iv) the courts will only intervene where there is a fundamental procedural defect, namely an error in the decision-making process or a procedural irregularity in the proceedings leading to the public officer’s dismissal. [21] In matters involving disciplinary decisions of public bodies, the courts exercise a limited supervisory jurisdiction and are generally constrained to affirm the findings of the disciplinary authority. Judicial intervention is justified only where there is a fundamental procedural defect, such as an error in the decision-making process or a procedural irregularity leading to the public officer’s dismissal. [22] The courts therefore cannot substitute their own findings of fact, interfere merely because they may arrive at a different conclusion on the same evidence, or re-weigh and reassess the evidence, as these functions lie within the exclusive province of the disciplinary authority entrusted by the legislature. These principles can be found in the following cases decided by the Federal Court. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [23] In Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149, the Federal Court held as follows: “[36] The courts have very limited review powers over administrative determinations of public bodies and are constrained to confirm the findings in disciplinary hearings. The courts will only intervene in disciplinary cases where there was a fundamental procedural flaw. The courts cannot exceed its role in cases of this genre as the instant appeal. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. Weighing and assessing the evidence is the function of the disciplinary authority which is the body to which the legislature has entrusted the responsibility of deciding the issue, and not the courts. Hence, the court should approach cases of this genre as the instant appeal in the following way, namely, whether there has been an error in the process or whether there was procedural irregularity in the decision making proceedings leading to the public officer’s dismissal.” (emphasis added) [24] Added to that, as to whether the officer has exculpated himself from the disciplinary charges through his written representation is a matter for the disciplinary authority to decide, not the Court. This principle was stated by the Federal Court in the case of Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1, at p. 17 as follows: **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 “[44] From these general orders, it can be clearly concluded that it is the disciplinary authority and not the court who is to decide whether the officer in his written representation has exculpated himself. The answer to question (iii) must therefore be answered in the negative, ie that it is not the court but disciplinary authority who is to decide this question of whether he has exculpated himself by his written representation.” (emphasis added) [25] It is also well established that, in matters of disciplinary punishment, the Court cannot substitute the penalty imposed by the disciplinary authority with its own assessment. This has clearly been stated by the Federal Court in the case of Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153: “...The court in truth is not substituting the order of dismissal with its own measure of punishment and if in the latter case, it would amount to the court forcing the employer/government to still employ him, or specifically enforcing a contract of personal service. ...To repeat, a court intervenes only on the nature and manner of accusation against a public officer as distinct from a consequential punishment as explained above. Just like a professional body being the best tribunal to judge the seriousness of misconduct of its members, in a similar vein, an employer, including a government, is the best person to judge similarly the seriousness of misconduct of an employee” (emphasis added) **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [26] Furthermore, in line with established principles of judicial review, the Court is not concerned with the correctness or merits of the conclusions reached in the decision-making process, so long as the proper procedures have been followed. This principle was clearly stated by the Federal Court in Tay Chai Huat (supra) at p. 166 as follows: “...In cases of this genre, the court reviews the lawfulness of a decision or action made by the disciplinary authority which is a public body. Such action is tantamount to a challenge to the way in which the decision has been made by the public body rather than the rights and wrongs of the conclusion reached. The court is not really concerned with the conclusions of that process and whether the conclusions were ‘right’, as long as the right procedures have been followed...” (emphasis added) [27] Therefore, based on the above mentioned cases enunciated by the apex court, in cases regarding disciplinary matters involving public officers, the courts exercise a highly circumscribed supervisory jurisdiction. [28] The courts will not interfere merely because they might have reached a different conclusion on the same evidence, nor will they rehear the matter by reassessing the evidence. This is because the evaluation of facts, the determination of whether an officer has exculpated himself, and the imposition of an appropriate punishment fall within the exclusive jurisdiction of the disciplinary authority to which the legislature has entrusted such responsibility. **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [29] Judicial intervention is warranted only where there exists a fundamental procedural defect, namely an error in the decision making process or a procedural irregularity leading to the dismissal, and the Court’s function in judicial review is confined to examining the legality of the process rather than the correctness or the merits of the conclusions reached. Whether the disciplinary proceedings have complied with the 1993 Regulations [30] The disciplinary actions that were instituted against the Respondents were made pursuant to regulation 37 of the 1993 Regulations with the possibility of them being dismissed or downgraded under regulation 38. [31] Regulation 37 reads as follows: “37. Procedure in disciplinary cases with a view to dismissal or reduction in rank

(1) If it is determined under sub-regulation 35(2) that the disciplinary offence complained of against an officer is of a nature that warrants a punishment of dismissal or reduction in rank, the Chairman of the appropriate Disciplinary Authority to which the case is referred shall consider all the available information. **Note : Serial number will be used to verify the originality of this document via eFILING portal 21

(2) If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall-

(3) If, after considering the representation made pursuant to sub-regulation (1), the appropriate Disciplinary Authority is of the opinion that the disciplinary offence committed by the officer does not warrant a punishment of dismissal or reduction in rank, the appropriate Disciplinary Authority may impose upon the officer any of the lesser punishments specified in reg 38 as it deems appropriate.

(4) If the officer does not make any representation within the period specified in paragraph (2)(b), or if the officer makes such a representation but the representation does not exculpate himself to the satisfaction of the appropriate Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide on the dismissal or reduction in rank of the officer. **Note : Serial number will be used to verify the originality of this document via eFILING portal 22

(5) If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.” [32] In the present appeal, pursuant to Regulations 35(1)(b) and 35(2) of the 1993 Regulations, the Chairman of the Disciplinary Authority determined that the disciplinary offences alleged against the Respondents were of a nature warranting punishment by dismissal or reduction in rank under Regulation 37, and accordingly referred the Respondents’ cases to the 1st Appellant. [33] Pursuant to Regulations 37(1) and 37(2) of the 1993 Regulations, the Chairman of the 1st Appellant has considered all relevant material and found that a prima facie case existed against the Respondents for disciplinary action to be taken under Regulation 37 in respect of the charges set out in the show cause letters. [34] Pursuant to Regulation 37(2)(a) and (b) of the 1993 Regulations, show cause letters were issued to the Respondents, informing them that disciplinary action under Regulation 37 was being instituted on the charges set out therein and requiring them, within 21 days of receipt, to submit written representations stating the grounds upon which they relied to exculpate themselves. [35] Pursuant to Regulation 37(4) of the 1993 Regulations, the Respondents submitted their written representations. In their respective written representations, the Respondents had expressly **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 acknowledged that the disciplinary proceedings were instituted under Regulation 37 of the 1993 Regulations with a view to dismissal or reduction in rank, and they set out grounds to exculpate themselves from the disciplinary charges. This is evident from paragraph 2 of their respective written representations, which states as follows: “2. Untuk makluman YDH Tuan, saya diambil tindakan tatatertib di bawah Peraturan 37, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib), 1993 iaitu dengan Tujuan Buang Kerja atau Turun Pangkat. Sehubungan dengan itu, saya mengemukakan alasan-alasan berikut bagi membebaskan diri atas (6) pertuduhan yang dikenakan ke atas saya:-” [36] The 1st Appellant had duly considered these representations carefully and fairly but found that they did not exculpate the Respondents from the 1st to the 6th Charges. Consequently, the 1st Appellant made a finding that the Respondents were guilty of the 1st to the 6th Charges and imposed the sentence of dismissal under Regulation 38(g) of the 1993 Regulations, with effect from 16 November 2022. [37] We are therefore of the considered opinion and we agree with the learned SFC that there has been a meticulous compliance with the procedures prescribed by the 1993 Regulations. It is plainly evident that the disciplinary process was conducted in full compliance with the relevant provisions of the Regulations. Accordingly, there was no basis for the Respondents’ allegation of any serious procedural **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 defect on the part of the Disciplinary Authority, let alone one that could have resulted in a grave miscarriage of justice. [38] As such, we are of the considered opinion that there is no fundamental procedural defect, error in the process, or procedural irregularity that occurred in the making of the 1st Appellant’s Decisions. Accordingly, applying the well-established principles of judicial review over disciplinary decisions of public service authorities, as articulated by the Federal Court in Tay Chai Huat, Vickneswary and Ng Hock Cheng, we agree with the Appellants that the Court should not intervene in the 1st Appellant’s Decisions. [39] However, the learned Judge had quashed the 1st Appellant’s Decisions on the sole ground that reasons were not provided for the said Decisions. The learned Judge held that the 1st Appellant was under a duty to give reasons, primarily on two grounds:

(ii) Providing reasons was necessary to enable the Respondents to effectively challenge the 1st Appellant’s Decisions. [40] In so deciding, the learned Judge relied on the Court of Appeal’s decisions in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 (“Tan Tek Seng”) and Nazrul Imran bin Mohd Nor v Civil Service Commission Malaysia & Anor [2021] 6 MLJ 750 (“Nazrul Imran”). **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 Application of Article 5 (1) Federal Constitution in cases of dismissal from service [41] It is the submission of learned Counsel for the Respondents that the Respondents’ dismissal has severe implications on their livelihood, which is protected under Article 5(1) of the Federal Constitution. As such, the learned Judge’s reliance on the case of Tan Tek Seng is pertinent, as the Court of Appeal in Tan Tek Seng had recognized that “life” under Article 5(1) encompasses the right to continue in lawful and gainful employment. Gopal Sri Ram JCA in Tan Tek Seng held as follows: "I have reached the conclusion that the expression "life" appearing in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment. For the purposes of this case, it encompasses the right to continue in public service subject to removal for good cause by resort to a fair procedure." [42] However, we are of the considered opinion that in the context of dismissal of public officers, article 5 must be read with article 135(2) of the Federal Constitution, which is a specific constitutional provision on the dismissal of public officers from public service. **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 “Article 135(2) of the Federal Constitution reads:

(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: [43] The scope and application of Article 135(2) of the Federal Constitution have been settled by decisions of the Federal Court, which bind this court. In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525, the Federal Court has held that the General Orders, in detailing the procedures therein, have sufficiently complied with article 135(2) of the Federal Constitution, and in the process, are in accord with the concept of natural justice and procedural fairness. The apex court was required to determine the following Questions of law:

(ii) Does art. 135(2) of the Federal Constitution require the relevant disciplinary authority to afford the public officer an oral hearing? **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [44] In respect of Question (i), the Federal Court held that Article 135(2) of the Federal Constitution provides that the respondent may only be dismissed after being given a reasonable opportunity to be heard. The show-cause letter informed the respondent, at the earliest opportunity, of the charges against him and the possible punishments under consideration should he fail to exculpate himself. He was therefore afforded a reasonable and sufficient opportunity to defend himself. Therefore, the Court held that the procedures prescribed under the General Orders have accordingly complied with Article 135(2) of the Federal Constitution and are consistent with the principles of natural justice and procedural fairness. [45] In respect of Question (ii), the Federal Court held that there is no separate right to make representations on the punishment to be imposed on an officer who is to be dismissed or reduced in rank. Indeed, under General Order 26(4), the disciplinary board is not even required to make a formal finding of guilt. [46] The right to be heard under Article 135(2) of the Federal Constitution does not require that the person concerned be afforded an oral hearing. Accordingly, the absence of such a hearing does not, without more, amount to a denial of natural justice. In matters governed by General Order 26, the requirements of fairness are satisfied by affording the officer an opportunity to make written representations to the deciding authority. [47] In Ghazi Mohd Sawi v. Mohd Haniff Omar, Ketua Polis Negara Malaysia & Anor [1994] 2 CLJ 333, the Federal Court held that it is **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 well settled that the terms “opportunity of being heard,” “right to be heard,” or “being heard,” in the context of natural justice, do not impose an obligation to hold a formal inquiry, nor does the word “hearing” necessarily imply an oral hearing. What is essential, as in the present case, is that the officer concerned is afforded a full opportunity to present his case before dismissal. Accordingly, the respondent did not breach the rules of natural justice in dismissing the appellant, as the duty to act fairly was fully observed. [48] While Article 5 of the Federal Constitution protects “life,” which includes livelihood such as employment, it cannot be construed in isolation nor treated as the sole yardstick in disciplinary matters. The controlling provision is Article 135(2), which establishes the constitutional framework for such proceedings. It has been settled by the apex courts that both the General Orders 1980 and the 1993 Regulations have sufficiently complied with article 135(2) of the Federal Constitution, and are in accord with the concept of natural justice and procedural fairness. [49] Therefore, we are of the considered opinion that the learned Judge fell into error when he made a finding that since the decisions affected the respondents’ employment/livelihood, which is protected by Article 5, then the First Appellant had a duty to explain the reasons for their decisions. [50] Pursuant to Article 135(2), the statutory duties of the Appellants are to comply with the 1993 Regulations. In the present case, since there is no complaint about any non-compliance with the 1993 Regulations, there is clearly no breach of the 1993 Regulations by **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 the Appellants. There is no duty under the 1993 Regulations to explain the reasons of the Appellant’s decision and there is no added duty outside the 1993 Regulations to require the disciplinary authorities to explain their reasons. [51] In Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777 at p. 784, the Federal Court held as follows: “Reading the provisions of the 1970 Regulations in its entirety, I see no requirement that entitles the respondent to be informed of the possibility of him being dismissed or reduced in rank in the event he is convicted of any of the charges preferred against him in either the show cause letter or prior to the start of the disciplinary enquiry. There is no provision imposing a similar obligation as that prescribed by reg. 28(1) of the 1993 Regulations. Since the 1970 Regulations impose no duty on the 1st Appellant to inform the respondent at the first opportunity of the likelihood of his dismissal or reduction in rank, the 1st appellant cannot be said to have deprived the respondent of any procedural fairness as there cannot be any breach of duty where none exists in law.” [52] In the present appeal, the duty to give reasons for the finding of guilt or the choice of punishment does not arise at all. As explained above, from the date the Respondents received their show-cause letters, they were fully aware that disciplinary action could result in dismissal or reduction in rank based on the charges outlined therein. **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 They were given the opportunity to submit written representations to exculpate themselves. [53] In fact, all the ingredients of the disciplinary charges have been explained in the show cause letters and the Respondents have been asked to provide an explanation, an exculpatory statement to respond to the disciplinary charges. In other words, the Respondents knew from the outset that failure to successfully address the charges could lead to dismissal. This is therefore not a case where the Respondents were dismissed suddenly or without prior notice and opportunity to be heard. [54] Added to that, we are also of the considered opinion that there is no additional statutory duty imposed by the 1993 Regulations on the Appellants to give reasons for their decision. The scheme of the 1993 Regulations have already included the grounds or reasons as the basis of the disciplinary action. Therefore, where the law does not require another step of providing reasons for the decisions, the courts should not add such requirements into the law. In Ghazi Mohd Sawi (supra), the Supreme Court had cautioned against adding words in the General Order which were never intended. “Similarly, in this case, we have examined the relevant provisions of the General Orders 1980 (Chapter D), and it is beyond dispute that these provisions have been assiduously followed by the respondent, and having regard to all the authorities cited earlier on an oral hearing or inquiry under the circumstances of this case was not justified. In dealing with General Orders 1980 (Chapter D) we remind ourselves that we are dealing with General Orders that **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 have legislative effect and we must guard ourselves against adding words into them which were never intended. In this regard, we found support in the passage of the judgment of Barwick CJ in Twist v. Randwick Municipal Council [1976] 136 CLR 106 at p. 110: ... if the legislation has made provision for that opportunity to [to be heard] to be given to the subject before his person or property is so affected, the Court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the Court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the Court being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme.” Whether there is a constitutional right to continue in public service pursuant to Article 5(1) [55] It is the decision of the learned Judge that the right to continue in public service is a constitutional right within the meaning of Art 5(1). Therefore, there is a need to give adequate reasons for the impugned decision even if there is no provision in the 1993 Regulations to do so. **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [56] We are of the considered opinion and we agree with the learned SFC that there is no constitutional right to continue in public service. [57] The Respondents as members of the police force holds office during the pleasure of the Yang di-Pertuan Agong (“YDPA”) based on Article 132(2A) of the Federal Constitution which provides as follows: “(2A) Except as expressly provided by this Constitution, every person who is a member of any of the services mentioned in paragraphs (a), (b), (c), (d), (f) and (h) of Clause (1) holds office during the pleasure of the Yang di-Pertuan Agong, and, except as expressly provided by the Constitution of the State, every person who is a member of the public service of a State holds office during the pleasure of the Ruler or Yang di-Pertua Negeri.” [58] The phrase “holds office during the pleasure of the YDPA” means that a public officer has no right to remain in the public service until his retiring age and the tenure of his office, among others, is subject to the pleasure of the YDPA. This principle was explained by the Federal Court in the following cases. [59] In Haji Ariffin v. Government of Pahang [1969] 1 MLJ 6, the Federal Court held as follows: “On 31st August, 1957, the Federal Constitution came into force. The plaintiff, being a member of the public service of the State of Pahang, was clearly a member of the Public Service for the purposes of the Constitution, see article 132(1). **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 With effect from 31st May, 1960, clause (2A) was added to article 132 to provide that:– “Except as expressly provided by the Constitution of the State, every person who is a member of the Public Service of the State holds office during the pleasure of the Ruler….” This clause is nothing new – it only reaffirms the previous common law rule that a member of the public service of the State held office during the pleasure of the Ruler. But in so reaffirming the old common law rule, clause (2A) goes further by providing that it is now subject to exceptions expressly provided by the Constitution of the State. In my judgment it is also subject to exceptions provided by the Federal Constitution and by written law. No exceptions provided by the State Constitution were cited to us. However, exceptions provided by the Federal Constitution were cited to us, namely, those in clauses (1) and (2) of article 135 of the Federal Constitution which read:– “135 (1) No member of any of the services … [the public service of the State of Pahang is one of them] 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.” **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 It is also convenient at this stage to quote clause (3) of the article which reads:– “(3) No member of any of the services mentioned in paragraph

(ii) The DB was duty bound to explain and give reasons for rejecting the grounds provided by the appellant in his representation in answering the charge, but this was not done as was evident from the affidavits filed.

(iii) Further, the failure of the DB to explain why the appellant was found not able to exculpate himself, also gave credence to the contention that the DB did not sufficiently consider the appellant’s defence. [65] It is the submission of the learned SFC that the learned Judge had erred in relying on the Court of Appeal’s decision in Nazrul Imran’s case, based on the following reasons:

537. Nadiah Zee bt Abdullah and another appeal [2018] 2 MLJ This can be seen at the following paragraphs in Nazrul Iman’s case: **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 “[53] R Rama Chandran, Akira and Ranjit Kaur are authorities from the highest court to say unequivocally the merits of the decision of PSC can be probed and questioned by the courts. Thus, these authorities recognised in essence the supervisory function of the courts to scrutinise the decision made. [54] With the explanation above, we would conclude that this court in exercising its appellate function has the power to review and examine the substance and merits of the decision of the PSC. We intend to do so and the elaboration on our exercise in this regard, is as follows.”

(ii) Where there are conflicting past decisions of the Court of Appeal (or a court of co-ordinate jurisdiction), it may choose which one to follow; and

(iii) It must not follow its own previous decision if it has been expressly or impliedly overruled by the House of Lords, or if it is inconsistent with a decision of the House of Lords. **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 [72] Added to that, this Court in the subsequent case of Ezaky Mulya bin Sapawi v Dato’ Sri Nadzri Siron Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Pengangkutan Jalan Malaysia & Ors [2022] 5 MLJ 472 at p. 494-496 has reiterated the principle that there is nothing in the disciplinary procedure under the 1993 Regulations that requires reasons to be given: “[79] We add there is nothing in the disciplinary procedure in Discipline Regulations 1993 which requires reasons to be given. In particular, we refer to reg 34 on the conditions for dismissal or reduction in rank, reg 37 on the procedure to be followed and reg 38 with regard to the punishment to be imposed. … [82] Thus, the proposition to be derived is that when there is no express or implied duty to give reasons, it falls on a case by case basis whether reasons ought to be given. This is intertwined with whether the decision should be set aside on the ground of irrationality for lack of a reason.” [73] In Saiful Bahari bin Yunus v Dato’ Jamil bin Rakon (Setiausaha Suruhanjaya Pasukan Polis) & Ors [2023] 3 MLJ 645, again this Court reiterated the same principle at p. 668-669: “[32] The appellant then contended that the learned High Court judge erred in not having appreciated that the second respondent’s dismissal decision is bereft of reasoning and hence not indicative of **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 due application of the mind as required by reg 33(2) of the Regulations. The decision is therefore harsh, unjust and unreasonable. Reliance has been made by the appellant on the case of Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja Pekerja Bank & Anor [2018] 2 MLJ 590; [2017] 4 MLRA 298 and Raj Kishore Jha v State of Bihar & Anor [2003]11 SCC 519. [33] The learned High Court judge in his decision stated that there is nothing in the Regulations that stipulate the obligation on the part of the Disciplinary Authority to give reasons for the dismissal decision. As such there cannot be a breach of duty where none exists at law. It is nonetheless clear the appellant knew of the reason of his dismissal from the second respondent’s letter dated 10 February 2020 which stipulates as follows: PEMBERITAHUAN HUKUMAN TATATERTIB Dengan hormatnya saya memaklumkan bahwa Suruhanjaya Pasukan Polis di dalam mesyuaratnya yang ke-105 pada 30 Januari 2020 dengan ini memutuskan Tuan dikenakan hukuman ‘buang kerja’ mengikut Peraturan 38(g), Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 selepas menimbang dengan teliti perakuan tatatertib di bawah Peraturan 32(2) Peraturan yang sama berkenaan Pengantungan Perintah Tahanan yang dikeluarkan kepada Tuan di bawah seksyen 7(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985. **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 [34] We have again reviewed the learned High Court judge’s decision and find there is no misdirection here too. We find that the appellant is aware that he has been dismissed because of the detention order/restriction order made pursuant to s 7(1) of the DD(SPM)A and that is adequate. In any event, we find that the appellant does not need the detail reasons of the dismissal decision by reason that judicial review is concerned with the decision-making process and not the merits of the decision.” Conclusion [74] Based on the foregoing reasons, we find that the learned Judge has erred in holding that the 1st Appellant was under a duty to furnish reasons to enable the Respondents to challenge the Decisions. In light of the settled principles governing judicial review of public service disciplinary decisions, as enunciated by the Federal Court in Tay Chai Huat, Vickneswary and Ng Hock Cheng, the findings of guilt and the choice of punishment lie within the exclusive province of the disciplinary authority and are not amenable to review on their merits. Judicial intervention is confined to instances of fundamental procedural impropriety or illegality in the decision-making process. No such defect has been established in the present appeals. [75] We are therefore satisfied that the learned Judge has erred in law in concluding that a duty to give reasons arose in the circumstances. There is no such duty imposed on the 1st Appellant under the 1993 Regulations. **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [76] In the premises, the appeals are allowed. The Orders of the High Court granting judicial review are hereby set aside with costs of RM10,000.00 for each appeal. Dated : 8 May 2026 sgd (AZIZAH BINTI NAWAWI) Chief Judges of Sabah & Sarawak Malaysia Parties Appearing: For the Appellant : Mohammad Sallehuddin bin Md Ali (FC) Peguam Kanan Persekutuan [Jabatan Peguam Negara] For the Respondents : Sreekant Pillai [Tetuan Sreekant Pillai] Cases Referred:

1. Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417; Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia, Malaysia & Anor [1998] 1 MLJ 305

2. Civil Service Unions & Ors v Minister of Civil Service [1985 **Note : Serial number will be used to verify the originality of this document via eFILING portal 48

3. R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145

4. Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Mohd Sobri Che Hassan [2020] 1 CLJ 595

5. Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149

6. Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1

7. Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153

8. Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 (“Tan Tek Seng”)

9. Nazrul Imran bin Mohd Nor v Civil Service Commission Malaysia & Anor [2021] 6 MLJ 750

10. Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525

11. In Ghazi Mohd Sawi v. Mohd Haniff Omar, Ketua Polis Negara Malaysia & Anor [1994] 2 CLJ 333

12. Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777

13. Haji Ariffin v. Government of Pahang [1969] 1 MLJ 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal 49

14. Pengarah Pelajaran, Wilayah Persekutuan & Ors. v Loot Ting Yee [1982] 1 MLJ 68

15. Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1

16. Ezaky Mulya bin Sapawi v Dato’ Sri Nadzri Siron Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Pengangkutan Jalan Malaysia & Ors [2022] 5 MLJ 472

17. Saiful Bahari bin Yunus v Dato’ Jamil bin Rakon (Setiausaha Suruhanjaya Pasukan Polis) & Ors [2023] 3 MLJ 645 **Note : Serial number will be used to verify the originality of this document via eFILING portal