TOPIC 5: TERMINATION OF SERVICE OF LOCAL COUNCILLORS BEFORE THE

EXPIRATION OF TENURE
RIGHT TO TERMINATE

Statutory Provisions

➢ Section 10 Local Government Act: Councillors

(1) The local authority shall consist of—
……..
not less than eight and not more than twenty-four other Councillors, to be
appointed by the State Authority.

(4) The seat of a Councillor shall become vacant in the event of his resignation
being accepted, if he is disqualified under subsection 34(7) or if his appointment
is revoked by the State Authority

➢ Section 34(7) Local Government Act: Any Councillor convicted of an offence

under this section shall thereupon become disqualified from continuing to be a
Councillor.

➢ Section 47 Interpretation Act: Power to appoint includes power to remove

Where a power to make an appointment is conferred by any written law, the
appointing authority shall also have power (subject to any limitations or
qualifications which affect the power of appointment) to remove, suspend,
reappoint or re-instate any person appointed in the exercise of the power.

➢ Section 94 Interpretation Act: Power to appoint includes power to dismiss

Where a written law confers upon any person or authority a power to make
appointments to any office or place, the power shall, unless the contrary
intention appears, be construed as including a power to dismiss or suspend any
person appointed and to appoint another person temporarily in the place of any
person so suspended or in place of any sick or absent holder of such office or
place:
Provided that where the power of such person or authority to make such
appointment is only exercisable upon the recommendation or subject to the
approval or consent of some other person or authority, such power of dismissal
shall, unless the contrary intention appears, only be exercisable upon the
recommendation or subject to the approval or consent of such other person or
authority.

➢ Iszuree Ibrahim v Majlis Mesyuarat Kerajaan Negeri Pulau Pinang & Ors
And Another Case [2016] 3 CLJ 955
1. The applicant was appointed as a Council Member of the Majlis
Perbandaran Pulau Pinang. The respondents informed the applicant that
the applicant’s appointment was terminated. The applicant file an
application to challenge the decision to remove him as a councillor.
 2. The applicant was appointed and held his position as councillor at the
pleasure of the State Authority, his removal was also at its sole discretion.
3. Paragraph [70] & [71] states that local councillors are appointed for a
fixed term of one year and may be reappointed at the discretion of the
State Authority. State Governments however may and could be
dissolved at any point of time. Should there be a change of State
Government mid-way through the appointment period of a councillor, the
councillor cannot insist on continuing as a councillor until his term
expires as the new State Government would have the absolute
discretion to appoint new councillors.

RIGHT TO BE HEARD

➢ Haji Ariffin v Government of Pahang [1968] 1 LNS 45

1. Plaintiff was a Kathi employed by the Defendant. His service was then
terminated with three months’ notice. The Plaintiff was not accorded right
to be heard.
2. The Court held that the Pahang State Government has the right to
stipulate that a Kathi may be appointed subject to termination of service
on notice or payment of salary in lieu. Such a condition is not inconsistent
with the Constitution which indeed says that a member of the Pahang
public service holds office at the pleasure of the Ruler. If it is inconsistent,
then, notwithstanding such a condition, the Ruler may terminate the
Kathi's appointment without notice or compensation; it does not mean
that the Ruler may not terminate his service on notice or payment of
salary in lieu.

➢ Sabdin Ghani v. Musa Haji Aman [1993] 2 CLJ 109

1. Plaintiff had been appointed to the position of Secretary-General by the
President of the Dewan Perniagaan Bumiputera Sabah (the Dewan), the
Supreme Council of the Dewan had the right to withdraw or revoke such
appointment without giving the plaintiff any prior right to be heard
ABSOLUTE DISCRETION

➢ Pendaftar Pertubuhan v Datuk Justine Jinggut [2013] 2 CLJ 362 (FC)

Now, even if the discretion is an absolute one, the basic proposition is that
"the courts do not probe into the merits of a discretionary action or decision.
The courts will not question a discretionary decision on such grounds as to
whether it was correct or proper, right or wrong. Also the courts will not
substitute its own discretion for that of a concerned authority".