KUALA LUMPUR, Sept 27 — The federal government has finally ordered the withdrawal of any ongoing disciplinary proceedings against civil servants accused or convicted under Section 498 of the Penal Code (Act 574).

This follows the Federal Court’s decision on December 15 last year, which ruled that the controversial provision on the "enticement” can no longer be applied in criminal proceedings to prosecute men who seduce married women.

"Any disciplinary proceedings being taken against officers who have been charged or convicted under Section 498 of the Penal Code (Act 574) must be halted and withdrawn.

"This determination is also extended to all state public services, statutory bodies, and local authorities, subject to the acceptance of their respective authorities,” Tan Sri Wan Ahmad Dahlan Abdul Aziz, director-general of the Public Service Department (JPA), was quoted by Utusan Malaysia as saying in a circular dated September 17.

But the Malay newspaper also reported the circular came with an added FAQ that clarified that civil servants currently facing misconduct investigations for an affair with a married woman, in which the offence has been reported directly to the Integrity Unit and not derived from a conviction under Section 498 of the Penal Code, may continue.

According to the newspaper, this is because the Federal Court’s decision was about a criminal offence and must be distinguished from disciplinary offences outlined in Part II of the Public Servants (Conduct and Discipline) Regulations 1993, which empowers the Disciplinary Authority (PBTT) to impose disciplinary penalties based on the conduct of civil servants.

In this context, criminal offences and disciplinary offences involve two different types of proceedings: criminal proceedings in court and disciplinary proceedings by PBTT.

"Any immoral conduct can serve as grounds for a disciplinary offense for the purposes of paragraph 4(2)(d) P.U. (A) 395/1993, which pertains to tarnishing or defaming the name of the public service.

"In the context of having an affair, the interpretation of ‘tarnishing or defaming the name of the public service’ includes engaging in immoral acts, whether known publicly or not,” Wan Ahmad was quoted as saying.

For example, if a department head receives complaints regarding a civil servant engaging in an affair and behaving immorally in the office, the department head can initiate disciplinary action against the officer even if the case is not publicly known, as the conduct violates the code of conduct expected of a civil servant.

"Civil servants should set an example and should not engage in affairs, even if not publicly known, because it constitutes immoral conduct,” Wan Ahmad was quoted as saying.

Additionally, the department head should conduct an investigation to verify the validity of the case, and if the evidence shows that the affair amounts to immoral conduct and tarnishes the name of the public service, disciplinary action can be taken.

For instance, if a civil servant is found kissing in an elevator or exchanging explicit images, or engaging in any other immoral acts.

In this case, the department head can advise the complainant to refer the matter to the religious office or can refer both officers to their respective departmental psychologists for counselling services, as appropriate.