The court determines that armed forces personnel do not have the right to a hearing before commission cancellation as per the Armed Forces Act 1972.

Mohd Saari Yusoff J:

In this suit, plaintiff claims the following relief:

(a) a declaration that the purported cancellation of the plaintiffs commission with effect from 31 May 1986 vide letter dated 7 May 1986 is null and void and of no legal effect;

(b) a declaration that the plaintiff remains a lieutenant in the Royal Malaysian Air Force with no loss of seniority and is entitled to all salaries, emoluments and benefits due to him as such;

(c) damages;

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

(e) interests (on adjudged sum till date of full satisfaction);

(f) costs; and

(g) such further or other relief deemed fit and proper by this Honourable Court.

Background

The plaintiff was appointed as a member of the armed forces on 1 July 1980. He was commissioned as second lieutenant (Udara) on 11 April 1981. After completing a course in logistic at Institute Teknologi Udara, TUDM Kinrara in March 1982, he was appointed as senior logistic officer at Pusat Pertahanan Udara Pertama TUDM Butterworth. On 11 April 1985, he was promoted to lieutenant (Udara).

The Armed Forces Council which was responsible for the administration of the armed forces convened 249th meeting on 27 March 1986. At the said meeting, it was decided to recommend to the Yang di Pertuan Agong the cancellation of the plaintiffs commission as lieutenant (Udara) logistic. Subsequently, by letter dated 7 May 1986, the plaintiff was informed that his commission as lieutenant in the Royal Malaysia Air Force be cancelled pursuant to s. 9 of the Armed Forces Act 1972 .

The main complaint of the plaintiff was that his service in the armed forces was terminated without right of being heard being given to him.

The issue for determination is whether the purported cancellation of the plaintiff's commission is valid.

For the plaintiff, it is submitted that the decision making process leading to the cancellation of the plaintiff's commission was fatally flawed on the premise that the first defendant had breached the rules of natural justice by not affording the plaintiff a hearing before any recommendation was made to Yang di Pertuan Agong. The learned counsel relied on the case of Hjh Halimatussaadiah bte Hj. Kamaruddin v. PSC Malaysia & Anor .

In that case, the court is concerned with question of whether the respondent (PSC) had acted fairly and properly against the appellant giving her every opportunity of being heard. In short, whether there was a breach of rule of natural justice.

At this juncture, it is pertinent to advert to the relevant part of Federal Constitution namely art. 132(1) and 135:

132(1) For the purposes 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 public force;

(e) (repealed);

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

(g) the public service of each State; and

(h) the education service.

135(1) No member of any of the services mentioned in paragraph (b) to (h) of clause (1) of Article 132 shall be dismissed or reduced in rank by any 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;

...

135(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.

... (emphasis added)

From my reading of art. 132(1) together with art. 135 of the Federal Constitution , clearly the framers of the Constitution had deliberately omitted the armed forces for purpose of conferring right of being heard to members of public service. Hence, the ratio decidendi in Halimatusaadiah's case has no application to the present case.

Next, I turn to the defendants' case. For purpose of present case, the defendants rely on the gaze