ETHIC ISSUES IN PUBLIC SERVICE

1.

INTRODUCTION

1.1.

Values and ethics in Public Service are the main important practices which are parallel to government policies that guides and push forwards towards glorious success of a country. Therefore, laws and regulations regulated in Public service contents forbidden and allowed attitudes of the employees. Ethics and value should be used as the measurement to determine the success of the occupational objective among the public servants or employees.

2.

DEFINATION OF ETHICS AND PUBLIC SERVICE

2.1.

Ethic is defined as an individuals personal beliefs about whether a decision, behavior, or action is right or wrong (Norman Barry, 1999). It also defined as concern with moral obligation, responsibility and social justice (Wiley, 1995).

2.2.

According to the Shorter Oxford English Dictionary (2002) Fifth Edition, the public service defined as a). Government employment; b). a service provided to the community especially under the direction local or central government or other official agency.

2.3.

Under Article 132 Federal Constitution of Malaysia, the public service are the compromised of :

i. ii. iii. iv. v. vi. vii.

the armed forces the judicial and legal service the general public service of the Federation the police force the joint public services mentioned in Article 133 the public service of each State, and the education service.

2.4.

Therefore ethic in public service can be defined as individuals personal of government employment officers/employees beliefs about whether a decision, behavior, or action is right or wrong according to Public Officers (conducts and discipline) regulation 1993 amended in 2002.

3.

SCENARIO OF ETHICS EVOLUTION IN PUBLIC SERVICE

3.1.

Mustafa (1996) explained that efforts have been taken to make ethics and values widely practiced in Malaysian Public Service by Malaysian Government since the programs of Mental Revolution and Bumi Hijau launched in 1970's.

3.2.

Then the Malaysian public servants been introduced with Guidance of Excellence Service (Panduan Perkhidmatan Cemerlang) in 1979 that bring the motto Service For The Nation (Berkhidmat Untuk Negara) that been wrote down in all government official letters.

3.3.

The Guidance of Excellence Service have seven core services that contains guided values for the public servants towards quality of job, trusteeship, responsibility, efficiently encourage the healthier

environment of good communication with behaviors and conducts that harmonize accordingly with Rukun Negara. In 1981, the public service taken to make intention to value the importance to time by implementing punch card in public service (INTAN, 1994).

3.4.

Campaign Bersih, Cekap dan Amanah launched by the Former Prime Minister of Malaysia, Tun Mahathir Mohammad in year 1982 to educate and culture a new occupational ethics and behaviors among the Malaysian society especially the government employees. The top priority of this campaign was the effort given to promote high job performances which covers job outputs and job standards (INTAN, 1994).

3.5.

In the same year Look to East policy launched focusing in integrating positive values such as discipline, team loyalty, quality job performance, efficiency and quality management from developed east countries such as Japan. The objective of this policy was to improve management and development performances and create the society that upholds positive values and ethics for the advancement of nation.

3.6.

The values and ethics of public servants strengthen through Leadership Through Example policy ( Dasar Kepimpinan Melalui Teladan) in 1983. By this policy, every leader in government agencies are expected to drive their leadership by good examples to their subordinates and by changing their bad attitudes and vital positive values such as hardworking, honest, careful, clean and trust.

3.7.

In the year 1985, Enhancing Islamic Values policy has being introduced in the public sector where the public servants are being promoted to embrace Islamic values which are comprehensive and universal. The selected Islamic values are trustee, responsible, moderate, sincere, dedication, discipline, diligent, cooperative, noble heart and grateful where the values can be accepted by the man globally (INTAN, 1994).

3.8.

Then

Excellence

Working

Culture

(Budaya

Kerja

Cemerlang)

introduced in the year 1989 for increasing quality working culture to drive the excellence of public service (INTAN, 1994).

3.9.

Continuation of that, Islamic Working Ethics launched in 1997, stressing aspect of the values as the obedience to Allah focusing on sincerity, trustee, dedication, efficiency, mutual and universal happiness.

3.10. The great consent toward public service shown through Gerakan Pemantapan Keutuhan Sistem Pengurusan Pentadbiran Kerajaan Malaysia (GPKSPPKM). This move is the clear evidence of commitment and seriousness of Malaysian government to generate the ethical public service but still the implementation are still slow and far away from achieving its objective and goals. i. GPKSPPKM has been instructed by the Prime Minister Dato' Seri Dr. Mahathir Mohammad in 8 January 1998 through the Prime Minister's Instruction No.1 Year 1998 (Arahan Perdana Menteri). This instruction requires every state, ministry, and government agencies to set up the Committee of Totality Management (Jawatankuasa Keutuhan Pengurusan, JKP)

meant for the efforts to overcome poor administration, financial management, bribery or corruption prevention among the public service employee that high-rise government agencies internally,

comprehensively

and

continuously

through

effectiveness,

integrity and accountability aspects (Dr. Mazlan, 2000).

ii.

This particular Prime Minister's Instruction is the complement for the steps of reformation in government's Purity Values Programs (Program Nilai Murni) that had being introduced before. JKP is constructed based on comprehensive, systematic, continuous and cohesiveness. Through Purity Values Programs, two types of values that had being stress on which are core values and expansion values to be compulsory in every and each government agencies. Where core values meant to be the mother values while the expansion values are special values designed for the particular occupation based on occupational sectors and main functions of the agencies. The core values have six values which are trustee, truthful, fairness, wise, transparent and grateful.

3.11. Some of the circulars that being published: i. Core Public Service ( Teras Perkhidmatan Awam), January 1979, ii. Public Service Ethics (Etika Perkhidmatan Awam) and

Excellence Service Concept (Konsep Perkhidmatan Cemerlang), December 1980 ,

iii. iv.

Bersih, Cekap dan Amanah, April 1982, Enhancing Islamic Values (Penerapan Nilai-nilai Islam Dalam Perkhidmatan), Julai 1982,

v.

Development Administration Circulars (Pekeliling Kemajuan Pentadbiran ), 1991-2008

vi. vii.

Tonggak Dua Belas, 1992, Leadership Through Example (Kepimpinan Melalui Teladan), Mac 1983, and

viii.

Gerakan

Pemantapan

Keutuhan

Sistem

Pengurusan

Pentadbiran Kerajaan Malaysia: Garis Panduan Pelaksanaan Dan Mekanisme Sistem Penyeliaan Program-program Nilai-nilai Murni (Arahan YAB Perdana Menteri No.1 Tahun 1998- Siri No.1 Tahun 2000)

4.

ISSUES OF ETHICS BY PUBLIC SERVICE EMPLOYEES

4.1.

The philosophy of the Malaysian Public Service is to create the creative, efficiency, sincere, trustee and hardworking, patient and wise, firm and brave, having high self dignity, plain and not greed, calm in facing challenges with clear mind, sincere in their heart, words and deeds, cooperative and responsible, always take cares of spiritual health, mental and physical, skilled in their work and always prepared to teach their skill to others and most important is never makes mistakes on determine priority. This philosophy is in line with the occupational ethics - The Main Twelve Pillars (Tonggak Dua Belas).

4.2.

Malek Shah (1998) suggest that to build a model of high quality public service there is a need to create a management based in chastity values (nilai murni) that gives assurance of achievement world class standard public service with courtesy and morals. Therefore

management techniques based on implementations of religious values that cover physical aspects and Islamic metaphysical aspects. So the intention of succeeding the quality Public Service that will guaranty the efficiency when we succeed implementation of ethics value that considers professionalism aspects with moral (akhlak/adap) based on faith (tawhid) and at the Al-Duniya Wal- Akhirah standards.

4.3.

According to Dato' Hj. Ahmad Said (2000) as the official administration and a government officer that being trusted to administrate the country with power provided, laws and regulation, resources and uniform officials, it is up to us to determine the good or bad of our nation. If every leader and sincere, just and efficiency officers then the good deeds will be norm and implemented by our society.

4.4.

Although there's already have been many instruction and circulation as been mentioned in this article that relates with public service ethics but still quantitatively the implementation of ethics only be can be disclosed through ethical and unethical behaviors cases by the government employee as below:

i.

Unethical Behaviors

(a)

Government effort was to high-rise continuously the service quality in every time, along the mainstream and development of the nation. Although we have archived success but still there were weakness to be fixed. We worry that the implementation of ethic values has been outer part only without the participation of the inner part of our public servants. That would not show us the actual

and true identity of our public servants because no observation was being done to monitor the inner part.

(b)

That's making us unsurprised to understand why the implementation of The Twelve Pillar was not the success as universal values and implemented in daily live formally in work or outside work since have being introduced along ago. Therefore appreciating time, dedication to succeed, enjoying work, dignity, high personal value and obligation on job have been neglected. Through observation and discussion have done shows us there are still many public servants inattentive in their job, using office time for personal interest, work usuriously, belief that working is burden and not ibadah, misused power and government properties, and show off unmoral behaviors. Although

there's some personal have outstanding performance but never shows good morals, can't be advised and don't want hear idea's from others in his department.

(c)

Some of unpleasant behaviors that have been reported in newspapers. Neglected of a hospital employee in Jitra Hospital that accidentally transferred HIV blood to housewife. There were reported that in the Magistrate

10

Court, Shah Alam that about three police officers was accused on helping seven prisoners to get away from the prison.

(d)

To avoid unlawful act in particular such as sexual harassment that had reported raised, ethics regarding sexual harassment in working place has been introduced in 1999. An instruction given to teachers that obligate those to sign working contract (akujanji) to make sure that their will never do anything beyond the teachers ethics. It was published in news papers in 20 August 2001 that The Human Rights Commission of Malaysia (SUHAKAM) reported that Malaysian police have violated the human rights which were against the constitutional of Malaysia and the basic universal human rights where their have disperse a gathering unlawful in Jalan Kebun, Klang, Selangor. These action and the behavior give the negative impact that shows the implementation of occupational ethics has been destroying that would lead towards destruction of image and confident of the public to the Malaysian Public Service.

11

(e)

The unethical behaviors of the public service employees has been clarified through General Orders (Chapter AG) when their found guilty in committing unlawful behaviors, such as:

o Breaking the nation's law that can be punished in any court of law for commit crime, bribery and unlawful use of drug.

o When the behavior is against the moral principles of the society such as solitude and sexual harassment.

o When the deed was done not for public but because of depression such as family, politic, religion or race.

o Misused the power given.

(f)

Every cases that have been mentioned above are classified as unethical based on what are clarified in General Order. Based on observations, the unethical behaviors always happens regardless of big or small cases that involved in every layer of the government

12

officers that neglected by the agencies and many cases were not reported and taken a proper action.

ii.

Discipline Cases

(a)

Breaking or violating discipline also can be concluded as violation of values and ethics that has been regulated and ought to obeyed. Based on statically report by the Public Service Department (PSD), discipline cases by the members of Public Service for the recent five years of duration as reported (2002-2006), taken action (exclude Armed Force and Police Force) in 2002 2004 and State Body) was 10,438 personel. Statistical records on discplinary actions are as Table 1.0 below:

(b)

Numbers of officers of the Malaysian Royal Armed Force and Police Force that taken action on discipline cases in recent five years of duration was reported totalled 7,390 and 4,819. Details are as shown in Table 2.0:

(c)

Officers from the Supporting Group are the most public officers that had been given disciplinary actions which accumulate 9,649 (92%) from 10,438 officers. This

13

phenomenon are caused by the domination of the population of Supporting group which are totalled 887,665 (77%) out of 1.1 million public employees. Details of discipline actions according to groups as Table 3.0

(d)

Cases regarding to Absence from duty are the most highest offence committed by public officers which totaled 7,668 cases (55%) compared to total cases of 13,761 cases. Details and the types of offence including behavioural as Table 4.0:

(e)

Two (2) types of punishments that often used by Discipline Board are warning(4,527 officers) and dismissal from duty (2,918 officers). Details as Table 5.0.

(f)

From the data apparently discipline cases, absents from work (Regulation 23) and the failure to be honest and responsible [regulation 4(2), (f) & (g)] , shows the high numbers covering more than 80% from the total whole cases. It was then followed by the cases such as failure to comply the instruction from high management [Regulation 4(2)(j), Drug abuse [Regulation 7] and failure to defend the image of public service [Regulation 4(2)(d)]. All these

14

cases related with the values of dedication toward success, value of time, enjoyment in work, noble simplicity, boastful personal and obligation to undermine task. Table 1: Statistical Officers records on disciplinary actions, 2002 2006 Classification of Service Federal Civil Service State Civil Service Federal Body Local Authority Total 2002 1,136 282 303 222 1,943 2003 552 206 312 302 1,372 2004 1,066 154 217 367 1,804 2005 978 239 127 249 1,593 2006 714 304 353 271 1,642

Table 2: Statistic number of officer the Malaysian Royal Armed Force and Police Force that taken action on discipline cases, 2002 - 2006 Service 2002 2003 2004 2005 200 6 523 430 953 TOTAL 7,390 4,819 12,209

Royal Armed Force 3,026 2,784 804 253 Royal Police Force 1,130 1,397 984 878 TOTAL 4,156 4,181 1,788 1,131

Table 3.0 : Discipline Actions According To Groups, 2002 2006 Year/ Group 2002 2003 2004 2005 2006 TOTA Management 2 1 4 2 3 12 Management & Professional 155 126 159 147 190 777 Supporting Group 1,786 1,245 1,641 2,575 2,402 9,649 Total 1,943* 1,372* 1,804* 2,724 2,595 10,438

L Note:* exclude Royal Armed Force and Royal Police Force Table 4.0 : Types of Offence, 2002-2006

15

Offence Absence From Duty Behavioural & Prohibitive Court Cases Drug Abuse Total

2002 2,182 1,234 375 391 4,182

2003 820 357 125 58 1,360

2004 2,056 771 132 285 3,244

2005 1,300 928 222 84 2,534

2006 1,310 854 240 37 2,441

Table 5.0: Punishment Types, 2002 2006 Punishment /Year Warning Fine Lucut Hak Emolument Tangguh Pergerakan Gaji Turun Gaji Turun Pangkat Buang Kerja TOTAL 2002 2003 2004 2005 2006 1,438 522 855 969 743 524 114 166 459 227 517 326 391 317 148 219 118 137 191 148 88 49 78 74 75 85 16 2 24 16 530 389 618 753 628 3,401 1,534 2,247 2,787 1,985

16

5.

ANTI CORRUPTION ACT 1997

5.1.

Bribes are one of the main types of corruption. The Public Service of Malaysia have stated clearly in Regulation 8 - Present , Chapter D under the General Order which indicated that the government actually tries to avoid and overcome the bribery issues in public service and its employees. The two (2) sub regulation under regulation 8 as below:

i.

Sub regulation (1) subject to the provisions of this regulation, an officer shall not receive or give nor shall he allow his spouse or any other person to receive or give on his behalf any present, whether in a tangible form or otherwise, from or to any person, association, body, or group of persons if the receipt or giving of such present is in any way connected, either directly or indirectly, with his official duties.

ii.

Sub regulation (4) if the circumstances make it difficult for an officer to refuse a present or token of value, the receipt of which is prohibited by this regulation, such present may be formally accepted but the officer shall, as soon as practicable, submit to his Head of Department a written report containing a full description and the estimated value of the present and the circumstances under which it was received.

17

5.2.

Anti Corupption Agency (ACA) discripes bribery offences as below: i. Soliciting/Accepting Bribes - Any person or agent who corruptly solicits/accepts/agrees to accept gratification

(money/property/ service and others) as an inducement or a reward to do or not to do an act inrelation to a transaction or any official act of his principal or employer.

ii.

Offering/Giving Bribes - Any person who corruptly offers/gives gratification (money/property/service and others) as an

inducement or a reward for any person or agent to do or not to do an act in relation to a transaction or any official act of his principal or employer

5.3.

In 1997, Malaysian Government introduced Anti Corruption Act 1997 (act 575) to combat bribery which was the combination of three (3) acts; Anti Corruption Act 1961, Anti Corruption Agency 1982 and Ordinance (Kuasa-Kuasa Perlu) Dharurat No. 22 1970.

5.4.

Since year 1995 ACA launched anti bribery campaigns which encourages government officers to take action to anybody that tried to bribe them. Refer to Table 6, the statistics shown that the information about information, investigation paper, total arrested and charged have been conducted by ACA during the year of 2004 to 2007. From this

18

statistics, it discovered by overall increasing in information on corruption activity which has been received and also prosecution were carried out by stated body. Amount are also increasing in total government officer arrested and charge for the bribery cases. Also, base current development year 2008, the number arrested in January to June 2008 has surpassed total overall arrested for the last year. Table 6.0: Bribery Statistic for 2004 -2007 2004 Information Investigation Paper Arrested Charged ACA Report Peg. Kerajaan Arrested Charged 2005 2006 2007 Total 46173 5105 2119 859 841 Total 1061 474

11,413 11292 11061 12407 982 497 178 146 2004 242 78 1441 485 205 210 2005 239 121 1317 546 254 251 2006 277 142 1365 591 222 234 2007 303 133

Table 7.0 : The Number Arrested In January To June 2008 Month Arrested January February March April May June Total Source: www.bpr.gov.my 6. 80 27 39 72 65 36 319

PUBLIC OFFICERS (CONDUCT AND DISCIPLINE) REGULATION1993

19

6.1.

According to Chapter One, Service Order (Arahan Perkhidmatan) (1999), government's agencies are been set up to implement the government policies without wasting any resources of manpower, time and money. The purpose is accordingly to the principles of value and ethics based on integrity, loyalty and honesty.

6.2.

Basically the important matters regarding to ethics and behaviors of the public servants have being stated in Chapter D, General Order, Regulations of Officers ( Conducts and Discipline) 2002. Although it is being not spelled out as ethics but still it contents the ethics principles that every public servant to uphold in their service such as: i. ii. iii. Execute jobs with efficiency, sincerely and responsibility; Give priority to the public interest than self interest in their work; Protect the image of public service in all time.

6.3.

The Public Officers (Conduct and Discipline) Regulation 1993 (the General Orders the GO) are being illustrated by section 2 of Article 132 of Federal Constitution effective on 15th December 1993 and amended in 2002.

6.4.

These regulations has been stated clearly in Malaysian governments General Orders, Chapter D especially under Conduct in Section II which comprise of 20 subtitle that discuss the matter. These regulations

20

are imposed to all public service officers in all time during their service. Any violation upon these regulations may result discipline acts done to the person involved.

6.5.

Under the GO, Part V sets out the procedure pertaining to dismissal or a reduction in rank of a public officer. Regulation 35 empowers the Chairman of the Disciplinary Authority (the DA) to determine the nature of the breach of discipline, whether it warrants a punishment of dismissal or reduction in rank. If the breach does not warrant a dismissal or a reduction in rank, the DA should follow the procedure in regulation 36. Otherwise, the DA will proceed under regulation 37.

6.6.

Under regulation 37(2), if the Chairman of the DA is satisfied that there exists a prima facie against the officer, he shall cause a letter to be sent to the officer containing the facts of the disciplinary offence and the grounds on which it is proposed to dismiss the officer or to reduce his rank.

6.7.

The officer is then required to make a representation within 21 days containing the grounds upon which he relies to exculpate himself. If the officer did not make any representation or that his representation does not exculpate himself to the satisfaction of the Disciplinary Authority,

21

the Disciplinary Authority shall proceed to consider and decide whether to dismiss or to reduce his rank.

6.8.

However, if the Disciplinary Authority is of the opinion that the case requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.

6.9.

Pursuant to regulation 37D, the Disciplinary Authority may impose any punishment or may even acquit the officer after considering the officers representation and the report of the Investigation Committee.

6.10.

The main discipline regulation in Public Officers (Conduct and Discipline) Regulation 1993 are: i. ii. iii. iv. v. vi. vii. viii. Regulation 4: General Regulation 4A: Sexual harassment Regulation 5: Outside employment Regulation 6: Dress etiquette Regulation 7: Drugs Regulation 8: Present, etc. Regulation 9: Entertainment Regulation 10: Ownership property

22

ix.

Regulation 11: Maintaining a standard of living beyond emoluments and legitimate private means

x. xi. xii. xiii. xiv. xv. xvi. xvii.

Regulation 12: Borrowing money Regulation 13: Serious pecuniary indebtedness Regulation 14: Report of serious pecuniary indebtedness Regulation 15: Lending money Regulation 16: Involvement in the futures market Regulation 17: Lucky draws, lotteries, etc. Regulation 18: Publication of books, etc. Regulation 19: Making public statement

xviii. Regulation 20: Prohibition on acting as editor, etc., in any publication xix. xx. xxi. xxii. Regulation 21: Taking part in politics Regulation 22: Institution of legal proceedings and legal aid Regulation 23: Absence from duty Regulation 24: Disciplinary action for absence without leave

(See Appendix A for the details)

7.

CHALLENGING A DISCIPLINARY DECISION IN THE PUBLIC SERVICE

23

7.1.

Procedural Fairness

i.

In the case of Ghazi bin Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114 the Supreme Court applied the principles in Council of Civil Service Union v Minister for the Civil Service [1984] 3 All ER 697. At page 126127, Jemuri Serjan SCJ delivering the judgment of the court said: The common law concept of natural justice is already embodied in GO 23 and art 135(2) of the Federal Constitution in so far as the right to be heard is concerned. Since the effect of certiorari is to quash a decision which is void or ultra vires in the broad sense, we need only to consider whether in dismissing the appellant, the respondent had failed to observe the rules of natural justice, apply the Wednesbury principles of

unreasonableness adverted to earlier on, or failed to understand correctly the law that regulates his decision-making power, and give effect to it. Lord Diplock had compendiously classified the grounds for judicial review under three heads, and referred to them as procedural impropriety, irrationality and illegality. See the GCHQ case Council of Civil Service Union v Minister for the Civil Service at p 410 as it is now known. Here, in the

24

present appeal, the appellant relied only on the ground of procedural impropriety which until then was popularly referred to as the breach of the rule of natural justice or the denial of the right to be heard.

ii.

Federal Court decision in Lembaga tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] 2 MLJ 417 which had clearly decided the Article 135(2) Federal Constitution and the GO are in accord with the concept of natural justice and procedural fairness in common law. Therefore, since the procedures on dismissal have been clearly provided in the GO, is the Court in any position to question the procedures under an extended version of procedural fairness in common law? Can the Court of Appeal do so in light of Jemuri Serjans (SCJ) judgment in Ghazi bin Sawi where His Lordship held that the principles at common law do not apply to a case regulated by statutes or subsidiary legislation which have legislative effect. Would the court be usurping the powers and functions of the executive by questioning the procedures in the GO according to the courts perception of what amount to fairness in the circumstances of the case?

7.2.

Right to an Oral Hearing

25

i.

The right to be heard before a person can be dismissed or reduced in rank is entrenched in Article 135(2) of the Federal Constitution (the Constitution), which 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.

ii.

Regulation 34 of the GO has also provided that before an officer can be dismissed or reduced in rank, he must be informed in writing of the grounds on which such action is proposed and he had been afforded a reasonable opportunity of being heard.

iii.

The pertinent question of whether the right to be heard in Article 135(2) Federal Constitution includes a right to an oral hearing that had been settled by both the Supreme Court in Ghazis case and the Federal Court in Utra Badi a/l K Perumal. In Ghazis case, SCJ Jemuri Serjan made the following pronouncement on this: The right to be heard does not mean the right to be heard orally. What it means is that the officer concerned should be given a full opportunity of stating his case.

26

iv.

In any event, the right to an oral hearing has been specifically provided by regulation 37(5) of the GO which clearly provides that if the 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.

v.

Further, regulation 37B (2) and (3) allows the Investigation Committee to call the officer to give evidence before the Committee as well as an opportunity to cross-examine any witness that was called to give evidence before the Committee.

vi.

In Ganasan a/l Marimuthu v. Public Services Commission & Anor [1998] 4 CLJ 331 at 342, His Lordship NH Chan JCA said: The Privy Council as well as the Supreme Court have held that in employing the procedure prescribed in general order 26 and the former reg 30 of the general orders, the requirements of fairness have been satisfied by an opportunity to make written representations to the deciding body. In all such cases, it has been held time and again by the highest courts in the land that written representations will suffice and that a fair hearing does not mean that there must be an opportunity to be heard orally by

27

the officer in person or by his lawyer at the disciplinary authority stage.

It is only if a committee of inquiry is appointed because the disciplinary authority requires further clarification in the case against the officer (General Order 26(5)), that he will have the opportunity of giving oral testimony to exculpate himself (General Order 26(6)). It is only then that the committee has discretion to allow him to be represented by an officer of the public service or, in exceptional cases, by an advocate and solicitor (General Order 26(8)).

vii.

However, the Court of Appeal in Ang Seng Wan v Suruhanjaya Polis Di Raja Malaysia & Anor [2002] 2 MLJ 131 had decided that in the circumstances of the case, where the officer had given an exculpatory statement, the failure to hold an oral hearing tantamount to a failure on the part of the Disciplinary Authority to afford the officer a reasonably opportunity of being heard. At page 136-137 Mohd Saari J held: There is nothing in law which prohibits a disciplinary authority from holding an oral hearing or enquiry. The decision whether to hold an enquiry or not would depend on the circumstances of each case. Under the circumstances of this case, the fact that

28

there is no evidence whatsoever to contradict the exculpatory statement of ASP Ang, the holding of an oral hearing or enquiry would, in our view, be justifiable. It follows, therefore, by such omission, it tantamount to failure on the part of PSC to afford ASP Ang a reasonable opportunity of being heard.

7.3.

Access to Documents i. The GO does not provide Disciplinary Authority a duty to supply documents when directing the officer to make representation to exculpate himself. The GO only provides a specific situation where the officer can have access to the documents. This is provided by regulation 37B(4) which provides that: (4) No documentary evidence shall be used against an officer unless the officer has previously been supplied with a copy of the evidence or given access to the evidence.

ii.

In Nicholas Langok Changkok v Director General of Prison & Ors [2001] 7 CLJ 428, Slaiman Daud JC in applying the GO said as follows: It is clearly stated therein that only the report of the incident was referred the Disciplinary Board and that the Board only considered that report in finding that there is prima facie case against the plaintiff and deciding that a charge be framed against

29

him. I did not find anything in the said reg. 28 to require such report to be furnished to the plaintiff. Subregulation (1) thereof only require a statement containing the facts of the breach of discipline alleged to have been committed by the officer and any proposed ground on which the officer is to be dismissed or reduced in rank to be sent to the officer concerned.

iii.

Tthe Court of Appeal in the judgment of Justice Sri Ram in Raja Abdul Maleks case also seemed to indicate that there is no duty on the disciplinary authority to provide documents without any requests made by the officer. Therefore, if the officer made a request for access to the relevant documents, does the refusal to accede to his request amount to a denial of natural justice?

iv.

In Ang Seng Wan, the Court of Appeal had also clearly implied that in certain circumstance it might be necessary to furnish the statements of witnesses and reports to the public officer. In Ang Seng Wan, it was held that "there is nothing in law which prohibits a disciplinary authority from holding an oral hearing or enquiry", and that the "decision to hold an enquiry or not would depend on the circumstances of each case". In the event, it was held by the Court of Appeal that the absence of evidence to rebut or contradict the exculpatory statement of the public officer

30

plus the fact that "the statements of witnesses and reports, although they were supplied to members of the PSC, were not supplied to ASP Gan" made it necessary for an oral hearing to be held, and that therefore the failure to conduct an oral hearing was a failure in the procedure and a breach of "natural justice as enshrined under art. 135(2)".

v.

The GO does not provide a duty to supply documents when directing the public officer to make representations. The legislative scheme has provided the only situation where documents are supplied to the public officer. This is a situation where the Disciplinary Authority is of the opinion that further clarification is needed, only then the public officer is accorded an oral hearing where regulation 37B(4) provides no documentary evidence shall be used against the officer unless he is previously supplied with a copy.

7.4.

Autrefois Convict and Autrefois Acquit

i.

The doctrine of autrfois convict and autrefois acquit emanates from criminal law. In Mohammad Yusoff v Attorney General [1975] 1 MLJ 1, Justice Chua had quoted the principle as stated by Charles J in R v Mills: The principle is that no man shall be

31

placed in peril of legal penalties more than once on the same accusation.

ii.

In the GO, regulation 31: (1) An officer who is acquitted of a criminal charge in any

criminal proceedings shall not be subject to disciplinary action on the same charge. (2) Nothing in subregulation (1) shall be construed so as to

prevent disciplinary action from being taken against the officer on any other ground arising out of his conduct in relation to the criminal charge, whether or not connected to the performance of his duties, as long as the grounds for the disciplinary action do not raise substantially the same issues as those in the criminal proceedings in relations to the criminal charge of which the officer was acquitted.

iii.

In Mohammad Yusoff v Attorney General [1975] 1 MLJ 1, Justice Chua held that what is prohibited under the doctrine is double punishment for the same offence. Therefore, since the Public Service Commission is merely tasked to enforce a high standard of propriety and professional conduct and not to enforce punishment like a court of law, His Lordship held that the doctrine does not preclude a man who has been acquitted or

32

convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal.

iv.

The predecessor to regulation 31, which is regulation 29 of the GO, 1980 became an issue before Justice Steve Shim in Mohd Nasir Shamsuddin v Inspector General of Police & Anor [1997] 5 CLJ 398. In this case, the officer was charged under section 406 of the Penal Code for dishonest misappropriation or disposal of property which he had been entrusted with. He was

subsequently discharged not amounting to an acquittal. About 3 years later disciplinary action was taken and he was dismissed from the police force.

v.

One of the issues raised was whether by taking disciplinary action on the basis of the four charges which contained substantially the same issues upon which the officer was earlier discharged not amounting to an acquittal by the magistrate's court, had contravened regulation 29. Justice Steve Shim then proceed to examine the ingredients of section 406 of The Penal Code and compare them with the disciplinary charges. At page 404/a-c His Lordship said:

33

It is quite obvious that the charges relied upon by the 1st defendant in dismissing the plaintiff form a concerted attack upon his general conduct in the performance of his duties - that he was grossly negligent in the handling of the exhibits under his care, custody and control at all material times. They are certainly not directed at any dishonest intention on the part of the plaintiff in relation to the said exhibits. In the circumstances therefore it cannot be said that the grounds of dismissal are the same or substantially the same as those for which the plaintiff was charged in the magistrate's court and subsequently discharged not amounting to an acquittal. They might have been concerned with the same exhibits but the nature and character of the charges are entirely dissimilar, one being concerned with a criminal offence and the other with gross negligence or gross dereliction of duty. That being the case, there has been no contravention of General Order 29 aforesaid.

8.

CONCLUSION

The efficiency of implementation of occupational ethics in Malaysian Public Service has been argued and discussed. Although there are many regulation, values and ethics that have been published for implementation, but there are still need to focus on launching and explaining. Follow ups and continuous

34

action need to be done by the government agencies. Circulations and instructions related to values and ethics need to launched in stages so that ethic values can be implemented. Although there are many programs to succeed implementation of ethic value in our public service but it won't succeed until the leaders and the employees in government agencies are committed toward implementing occupational ethics.

35

Appendix A Public Officers (Conducts And Discipline) Regulation 1993 Amended In 2002 Main Discipline Regulation A. (1) Regulation 4. General An officer shall at all times give his loyalty to the Yang di-Pertuan Agong, the country and the Government. (2) An officer shall not(a) (b) (c) subordinate his public duty to his private interests; conduct himself in such a manner as is likely to bring his private interests into conflict with his public duty; conduct himself in any manner likely to cause a reasonable suspicion that (i) he has allowed his private interests to come into conflict with his public duty so as to impair his usefulness as a public officer; or (ii) (d) (e) (f) (g) (h) he has used his public position for his personal advantage; conduct himself in such a manner as to bring the public service into disrepute or bring discredit to the public service; lack efficiency or industry; be dishonest or untrustworthy; be irresponsible; bring or attempt to bring any form of outside influence or pressure to support or advance any claim relating to or against the public service, whether the claim is his own claim or that of any other officer;

36

(i) (j) B. (1)

be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate; and be negligent in performing his duties.

Regulation 4A. Sexual harassment An officer shall not subject another person to sexual harassment, that is to say, an officer shall not (a) (b) make any sexual advance, or any request for sexual favours, to another person; or do any act of a sexual nature in relation to another person, in circumstances in which a reasonable person, having regard to all the circumstances, would be offended, humiliated or intimidated.

(2)

A reference in subregulation (1) to the doing of an act of a sexual nature to another person (a) includes the making of a statement of a sexual nature to, or in the presence of, that other person, whether the statement is made orally or in writing or in any other manner; (b) is not limited to the doing of such act at workplace or during working hours only as long as the doing of such act brings the public service into disrepute or bring discredit to the public service.

C. (1)

Regulation 5. Outside employment Unless and to the extent that he is required or authorized to do so in the course of his duties as an officer of a public service, an officer shall not (a) (b) take part, either directly or indirectly, in the management or dealings of any commercial, agricultural or industrial undertaking; undertake for reward any work with any institution, company, firm or private individual; 37

(c) (d) (2)

as an expert, furnish any report or give any evidence, whether gratuitously or for reward; or function as an executor, administrator or receiver.

Notwithstanding subregulation (1), an officer may, with the prior written permission of his Head of Department, carry on any of the activities or perform any of the services specified in that subregulation, either for his benefit or for the benefit of his close relatives or any non-profit-making body of which he is an office-bearer.

(3)

In considering whether or not permission should be granted to any officer under subregulation (2), the Head of Department shall have regard to the code of conduct as laid down in regulation 4 and shall ensure that the activity or service(a) (b) (c) does not take place during office hours and during such time when the officer is required to perform his official duties; does not in any way tend to impair the officer's usefulness as an officer of the public service; and does not in any way tend to conflict with the interests of the public service or be inconsistent with the officer's position as an officer of the public service.

(4)

Except as may otherwise be determined by the Federal Treasury, all sums of money received by an officer as remuneration for carrying on any of the activities or performing any of the services mentioned in subregulation (1) shall be deposited with the Federal Treasury pending its decision as to the amount, if any, which may be retained by the officer personally and by any other officer who assists such officer in carrying on the activity or performing the service.

D. (1)

Regulation 6. Dress etiquette An officer on duty shall always be properly attired in such manner as may be specified by the Government through directives issued from 38

time to time by the Director General of Public Service or other authorities. (2) An officer who is required to attend an official function shall be attired as specified for the function, and if the dress etiquette for such function is not specified, he shall be appropriately attired for such function. E. (1) Regulation 7. Drugs An officer shall not use or consume any dangerous drug, except as may be prescribed for his use or consumption for medicinal purposes by a medical practitioner who is registered under the Medical Act 1971 [Act 50], or abuse or be dependent on any dangerous drug. (2) If a Government Medical Officer certifies that an officer is using or consuming, other than for medicinal purposes, a dangerous drug or is abusing or dependent on a dangerous drug, that officer shall be liable to disciplinary action with a view to dismissal. (3) Notwithstanding subregulation (2), the service of an officer whom a Government Medical Officer has certified to be using or consuming, other than for medicinal purposes, a dangerous drug or abusing or dependent on a dangerous drug may be terminated in the public interest under regulation 49 if the officer has attained the optional retirement age specified by the Government at that time. (4) For the purpose of this regulation, "dangerous drug" means any drug or substance listed in the First Schedule to the Dangerous Drugs Act 1952 [Act 234]. F. (1) Regulation 8. Present, etc. Subject to the provisions of this regulation, an officer shall not receive or give nor shall he allow his spouse or any other person to receive or give on his behalf any present, whether in a tangible form or otherwise, 39

from or to any person, association, body, or group of persons if the receipt or giving of such present is in any way connected, either directly or indirectly, with his official duties. (2) The Head of Department of an officer may, if he thinks fit, permit the officer to receive a letter of recommendation from any person, association, body, or group of persons on the occasion of the officer's retirement or transfer so long as such letter of recommendation is not enclosed in a receptacle of value. (3) The Head of Department may permit the collection of spontaneous contributions by officers under his charge for the purpose of making a presentation to an officer in his Department on the occasion of the officer's retirement, transfer or marriage or any other appropriate occasion. (4) If the circumstances make it difficult for an officer to refuse a present or token of value, the receipt of which is prohibited by this regulation, such present may be formally accepted but the officer shall, as soon as practicable, submit to his Head of Department a written report containing a full description and the estimated value of the present and the circumstances under which it was received. (5) Upon receipt of a report made under subregulation (4), the Head of Department shall (a) (b) permit the officer to retain the present; or direct that the present be returned, through the Head of Department, to the giver. G. Regulation 9. Entertainment An officer may give to or accept from any person any kind of entertainment if-

40

(a)

the entertainment does not in any manner influence the performance of his duties as a public officer in the interest of that person; and

(b)

the giving or acceptance of such entertainment is not in any way inconsistent with regulation 4.

H. (1)

Regulation 10. Ownership property An officer shall, on his appointment to the public service or at any time thereafter as may be required by the Government, declare in writing to his Head of Department all properties owned by him or by his spouse or child or held by any person on his behalf or on behalf of his spouse or child.

(2) (3)

An officer who does not own any property shall make a declaration in writing to that effect. Where, after making a declaration under subregulation (1), an officer or his spouse or child acquires any property, either directly or indirectly, or any property acquired by him or by his spouse or child is disposed of, that officer shall immediately declare such acquisition or disposal of property to his Head of Department.

(4)

Where an officer or his spouse or child intends to acquire any property, and the acquisition is inconsistent with regulation 4, the acquisition shall not be made without the prior written permission of the Secretary General of the Ministry.

(5)

In deciding whether or not to grant permission under subregulation (4), the Secretary General of the Ministry shall have regard to the following matters: (a) (b) the size, amount or value of the property in relation to the officer's emoluments and any legitimate private means; whether the acquisition or holding of such property will or is likely to conflict with the interests of the public service or with the 41

officer's position as a public servant, or be in any way inconsistent with regulation 4; (c) (6) any other factor which he may consider necessary for upholding the integrity and efficiency of the public service. The Head of Department shall, if he is satisfied with the declaration of property made by the officer, direct that it be recorded in the officer's records of service that the declaration has been made. (7) Every declaration under subregulation (1) shall be categorized as classified and every person who gains information under this regulation of any such declaration shall comply with the procedures and regulations pertaining to the management of the Government's classified documents. (8) In this regulation, "property" includes property of any description, whether movable or immovable, as may be prescribed by the Director General of Public Service from time to time. I. Regulation 11: Maintaining a standard of living beyond

emoluments and legitimate private means (1) Where the Head of Department is of the opinion that an officer is or appears to be(a) (b) maintaining a standard of living which is beyond his emoluments and other legitimate private means, if any; or in control or in possession of pecuniary resources or property, movable or immovable, the value of which is disproportionate to, or which could not reasonably be expected to have been acquired by the officer with his emoluments and other legitimate private means, the Head of Department shall, by notice in writing, requires the officer to give a written explanation within a period of thirty days from the date of

42

receipt of such notice on how he is able to maintain such standard of living or how he obtained such pecuniary resources or property. (2) The Head of Department shall, upon receipt of the explanation under subregulation (1) or, where the officer fails to give any explanation within the specified period, upon the expiry of such period, report this fact to the appropriate Disciplinary Authority together with the officer's explanation, if any. (3) Upon receipt of the report under subregulation (2), the appropriate Disciplinary Authority may take disciplinary action against the officer or take such other action against the officer as it deems fit. J. (1) Regulation 12. Borrowing money No officer may borrow from any person or stand as surety to any borrower, or in any manner place himself under a pecuniary obligation to any person(a) (b) (c) (d) (2) who is directly or indirectly subject to his official authority; with whom the officer has or is likely to have official dealings; who resides or possesses land or carries on business within the local limits of his official authority; or who carries on the business of money lending. Notwithstanding subregulation (1), an officer may borrow money from, or stand as surety to any person who borrows money from, any financial institution, insurer or co-operative society, or incur debt through the acquisition of goods by means of hire-purchase agreements, if (a) the financial institution, insurer or co-operative society from which the officer borrows is not directly subject to his official authority;

43

(b)

the borrowing does not and will not lead to public scandal and cannot be construed as an abuse by the officer of his public position to his private advantage; and

(c)

the aggregate of his debts does not or is not likely to cause the officer to be in serious pecuniary indebtedness as defined under subregulations 13(7) and (8).

(3)

Subject to subregulation (2), an officer may incur debts arising from(a) (b) (c) (d) (e) sums borrowed on the security of land charged or mortgaged, where the sums borrowed do not exceed the value of the land; overdrafts or other credit facilities approved by financial institutions; sums borrowed from insurers on the security of insurance policies; sums borrowed from the Government or any co-operative society; payment due on goods acquired by means of hire-purchase agreements.

K. (1) (2)

Regulation 13. Serious pecuniary indebtedness An officer shall not in any manner cause himself to be in serious pecuniary indebtedness. Serious pecuniary indebtedness from whatever cause, other than as a result of unavoidable misfortune not contributed to in any way by the officer himself, shall be regarded as bringing disrepute to the public service and shall render the officer liable to disciplinary action.

(3)

Where serious pecuniary indebtedness has occurred as a result of unavoidable misfortune, the Government may give to the officer such assistance as the circumstances may warrant.

(4)

If an officer finds that his debts cause or are likely to cause serious pecuniary indebtedness to him, or civil proceedings arising from the 44

debt have been instituted against him, he shall immediately report this fact to his Head of Department. (5) An officer who fails or delays in reporting his serious pecuniary indebtedness or who reports his serious pecuniary indebtedness but fails to disclose its full extent or gives a false or misleading account of such indebtedness commits a breach of discipline and shall be liable to disciplinary action. (6) Without prejudice to the other provisions of this regulation, where an officer's debts amount to serious pecuniary indebtedness but he has not been adjudged a bankrupt, the Head of Department shall monitor and, from time to time, review the case. (7) For the purpose of this regulation, the expression "serious pecuniary indebtedness" means the state of an officer's indebtedness which, having regard to the amount of debts incurred by him, has actually caused serious financial hardship to him. (8) Without prejudice to the general meaning of the expression "serious pecuniary indebtedness" set out in subregulation (7), an officer shall be deemed to be in serious pecuniary indebtedness if(a) (b) the aggregate of his unsecured debts and liabilities at any given time exceeds ten times his monthly emoluments; he is a judgement debtor and the judgment debt has not been settled within the period of one month upon receipt of the sealed order of the judgement; or (c) he is a bankrupt, or an insolvent wage earner, as the case may be, for so long as any judgment against him in favour of the Official Assignee remains unsatisfied or for so long as there is no annulment of his adjudication of bankruptcy. (9) Notwithstanding subregulation (7), an officer may incur debts for the purpose of education loan so long as he is not declared a bankrupt.

45

L. (1)

Regulation 14. Report of serious pecuniary indebtedness The Registrar or Senior Assistant Registrar of the High Court and the Registrar of the Sessions and Magistrate's Courts shall, in respect of proceedings in their courts, report to the appropriate Head of Department every case of a public officer(a) who, being a judgement debtor, does not appear from the file of the suit to have settled the debt within the period of one month upon receipt of the sealed order of the judgement; (b) (c) who has filed his own petition in bankruptcy or for a wage earner's administration order; or against whom a creditor's petition in bankruptcy has been presented.

(2)

The Official Assignee shall, as soon as he has sufficiently investigated the affairs of a public officer who is a bankrupt or an insolvent wage earner, communicate to the appropriate Head of Department a report containing the following matters: (a) the Statement of Affairs filed by the bankrupt or an insolvent wage earner in accordance with the bankruptcy law for the time being in force; (b) (c) the amount of instalment payment ordered or proposed to be made; whether or not the Official Assignee proposes to initiate any further proceedings and, if so, a brief indication relating to the nature of those further proceedings; (d) (e) the main cause of the bankruptcy; whether in his opinion the case involves unavoidable misfortune, dishonourable conduct or any other special circumstances, favourable or unfavourable to the officer; and (f) any other matter which, in his discretion, he thinks proper to mention. 46

(3)

The Head of Department shall forward the report received under subregulations (1) and (2) together with his report on the officer's work and conduct before and since his serious pecuniary indebtedness to the appropriate Disciplinary Authority.

(4)

After considering all the reports, the appropriate Disciplinary Authority shall decide whether to take disciplinary action against the officer concerned and, if so, what action to take.

(5)

If the disciplinary action taken under subregulation (4) results in a punishment of deferment of salary movement, the appropriate Disciplinary Authority may, on the expiry of the deferment of salary movement, order that an amount equivalent to the restored salary movement be added to the instalments payable to the Official Assignee or to any judgement creditor.

(6)

An officer who obtains an annulment of his bankruptcy may be treated as having fully restored his credit.

M (1) (2)

Regulation 15. Lending money An officer shall not lend money at interest, whether with or without security. The placing of money on fixed deposit or into an account in any financial institution or co-operative society or in bonds issued by the Government or by any statutory body shall not be regarded as lending of money at interest for the purposes of this regulation.

N.

Regulation 16. Involvement in the futures market

No officer shall involve himself as a buyer or seller or otherwise in any local or foreign futures market.

47

O.

Regulation 17. Lucky draws, lotteries, etc.

An officer shall not hold or organize or participate in any lucky draws or lotteries other than for purposes of charity. P. Regulation 18. Publication of books, etc.

An officer shall not publish or write any book, article or other work which is based on classified official information. Q. (1) Regulation 19. Making public statement An officer shall not, orally or in writing or in any other manner(a) (b) (c) (d) (2) make any public statement that is detrimental to any policy, programme or decision of the Government on any issue; make any public statement which may embarrass or bring disrepute to the Government; make any comments on any weaknesses of any policy, programme or decision of the Government; or circulate such statement or comments, whether made by him or any other person. An officer shall not, either orally or in writing or in any other manner(a) (b) (c) (d) make any comments on the advantages of any policy, programme or decision of the Government; give any factual information relating to the exercise of the functions of the Government; give any explanation in respect of any incident or report which involves the Government; or disseminate any such comment, information or explanation whether made by him or any other person, unless the prior

48

written permission, either generally or specifically, has first been obtained from the Minister. (3) Subregulation (2) shall not apply to any comment, information or explanation made, given or disseminated where the contents of the comment, information or explanation had been approved by the Minister. (4) For the purpose of this regulation, "public statement" includes any statement or comment made to the press or to the public or in the course of any public lecture or speech or in any broadcast or publication, regardless of the means. R. Regulation 20. Prohibition on acting as editor, etc., in any publication An officer shall not act as the editor of, or take part directly or indirectly in the management of, or in any way make any financial contribution or otherwise to, any publication, including any newspaper, magazine or journal, regardless of the means by which it is published, except the following publications: (a) (b) (c) (d) departmental publications; professional publications; publications of non-political voluntary organizations; and publications approved in writing by the Head of Department for the purposes of this regulation. S. (1) Regulation 21. Taking part in politics Except as provided in subregulation (3), an officer in the Top Management Group and the Managerial and Professional Group is prohibited from taking an active part in political activities or wearing any emblem of a political party, and in particular he shall not49

(a)

make any public statement, whether orally or in writing, that would adopt a partisan view on any matter which is an issue between political parties;

(b)

publish or circulate books, articles or leaflets setting forth his partisan views, or the views of others, on any matter pertaining to any political party;

(c)

engage in canvassing in support of any candidate at a general election, by-election or any election to any office in any political party;

(d)

act as an election agent or a polling agent or in any capacity for or on behalf of a candidate at an election to the Dewan Rakyat or to any State Legislative Assembly;

(e) (f) (2)

stand for election for any post in any political party; or hold any post in any political party.

An officer in the Support Group may stand for election or hold office or be appointed to any post in a political party after first obtaining the written approval of the Director General of Public Service or the Secretary General of the appropriate Ministry, as the case may be.

(3)

Notwithstanding the provisions of subregulation (1), an officer who has been granted leave until the date of his retirement for the purpose of finishing his accumulated leave may participate in political activities provided that(a) he has obtained the prior written approval of the Director General of Public Service or the Secretary General of the appropriate Ministry, as the case may be; and (b) by being so engaged he does not contravene the provisions of the Official Secrets Act 1972 [Act 88].

(4)

An application for approval under paragraph (3)(a) shall be made at least three months prior to the date the officer is allowed to go on leave prior to retirement.

50

(5) (6)

Nothing in this regulation shall preclude an officer from being an ordinary member of any political party. An officer who has been accepted as an ordinary member of any political party shall as soon as possible inform this fact to his Head of Department.

T. (1)

Regulation 22. Institution of legal proceedings and legal aid Where an officer desires legal aid as provided for under subregulation (3) he shall not institute legal proceedings in his own personal interests in connection with matters arising out of his public duties without the prior consent of the Secretary General of the Ministry.

(2)

An officer who receives a notice of the institution or intended institution of legal proceedings against him in connection with matters arising out of his public duties or who receives any process of court relating to such legal proceedings shall immediately report the matter to the Head of Department for instructions as to whether and how the notice or, as the case may be, the process of court is to be acknowledged, answered or defended.

(3)

An officer who desires legal aid to retain and instruct an advocate and solicitor for the purpose of legal proceedings in connection with matters arising out of his public duties may make an application to the Secretary General of the Ministry.

(4)

An application under subregulation (3) shall contain all the facts and circumstances of the case together with the considered opinion of the Head of Department as to the nature of the officer's involvement and shall be addressed and submitted to the Secretary General of the Ministry.

(5)

Upon receipt of an application under subregulation (3), the Secretary General of the Ministry may approve or reject the application, subject to the advice of the Attorney General as to51

(a) (b) (c)

the amount of legal aid to be approved; the advocate and solicitor to be retained and instructed by the officer; or any other conditions which the Attorney General may consider advisable,

and to a further implied condition that, in the event of the officer being awarded costs by the court at the conclusion of the legal proceedings, no payment in respect of the legal aid so approved will be made by the Government unless the amount of costs so awarded to him is insufficient to meet charges for retaining and instructing an advocate and solicitor. (6) Charges for employing, without the approval of the Secretary General of the Ministry, an advocate and solicitor retained and instructed by or on behalf of an officer in legal proceedings in connection with matters arising out of his public duties shall not be paid for by the Government. U. Regulation 23. Absence from duty

In this Part, "absence", in relation to an officer, includes a failure to be present for any length of time at a time and place where the officer is required to be present for the performance of his duties. V. Regulation 24. Disciplinary action for absence without leave

An officer's absence from duty without leave or without prior permission or without reasonable cause shall render him liable to disciplinary action.

52