The court affirmed that members of the armed forces are not entitled to a hearing before commission cancellation as per constitutional provisions, emphasizing discipline and public interest.

Introduction

[1] The question posed to this court is straight forward:

Whether an officer of the armed forces whose commission is cancelled by the Yang di-Pertuan Agong pursuant to s 9 of the Armed Forces Act 1972 , although not required to be heard by the Yang di-Pertuan Agong, having regard to art 135(1) and (2) of the Federal Constitution , is nevertheless entitled to be heard by the Armed Forces Council before it makes its recommendation to the Yang di-Pertuan Agong.

Background Facts

[2] The appellant was appointed a member of the Armed Forces on 1 July 1980. He was commissioned as second lieutenant of the Royal Malaysian Air Force (RMAF) on 11 April 1981. After completing a course in logistic, he was assigned as senior logistic officer to the RMAF's base in Butterworth, Penang and on 11 April 1985, he was promoted to lieutenant (RMAF).

[3] The Armed Forces Council, which is responsible for the administration of the Armed Forces in Malaysia, convened a meeting on 27 March 1986. It was decided at this meeting to recommend to the Yang di-Pertuan Agong the cancellation of the appellant's commission as lieutenant in the RMAF.

[4] By letter dated 7 May 1986, the appellant was informed that his commission as an officer of the RMAF was cancelled pursuant to s 9 of the Armed Forces Act 1972 . This was subsequently published in the Government Gazette bearing No 5438 on 26 August 1986.

[5] Dissatisfied with this outcome, the appellant filed a civil suit in the High court at Kuala Lumpur seeking the following reliefs:

(a) a declaration that the purported cancellation of his commission is null and void;

(b) a declaration that he remains a lieutenant in the RMAF with no loss to seniority, emoluments and benefits due to him as such;

(c) damages;

(d) an account be taken of all the salaries, emoluments and benefits due to him;

(e) interest and costs.

Appellant's Argument

[6] The appellant conceded that the armed forces come within the ambit of public services as stated in art 132 of the Federal Constitution (Constitution) and by virtue of cl 1 of art 135 of the Constitution such member of the armed forces is not accorded the right to be heard before he is dismissed or reduced in rank. But, before the Yang di-Pertuan Agong cancels a commission of an officer of the armed forces, s 9 of the Armed Forces Act requires a recommendation from the Armed Forces Council. It is the contention of the appellant that since there is this requirement, he should have been accorded a right to be heard before the Armed Forces Council made the recommendation to the Yang di- Pertuan Agong. This common law right of audi alteram partem is not prohibited by the Constitution or by any statutory law. As the Armed Forces Council had not accorded to the appellant this right to be heard before the Armed Forces Council, there is a breach of natural justice. Consequently, as a result of this flaw in procedure he should be reinstated.

[7] To appreciate this argument, I set out below the relevant parts of arts 132 and 135 of the Constitution.

132. Public services

(1) For the purpose of this Constitution, the public services are:

(a) the armed forces;

(b) the judicial and legal service;

(c) the general public service of the Federation;

(d) the police force;

(e) (repealed)

(f) the joint public services mentioned in art 133;

(g) the public service of each State; and

(h) the education service.

(2) (not applicable)

(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