Public Service Department (JPA) director-general Wan Ahmad Dahlan Abdul Aziz said this follows the Federal Court’s striking down of the offence, contained in Section 498 of the Penal Code, on grounds that it is unconstitutional.
In its ruling in December last year, the apex court unanimously held that the provision unlawfully discriminates only on the grounds of gender, in violation of Article 8(2) of the Federal Constitution.
“In view of this decision, all disciplinary action against officers who have been prosecuted under the section must cease and be withdrawn,” JPA said in a circular dated Sept 17.
Wan Ahmad also said all suspensions pending court decisions premised on the voided section must be lifted.
However, Wan Ahmad said civil servants can still face disciplinary action under the Public Officers (Conduct and Discipline) Regulations 1993.
Disciplinary action based on complaints to departments’ integrity units of men having affairs with married women can still continue, he said.
“Under the Public Servants’ Regulations (Behaviour and Discipline) 1993, the disciplinary board has power to punish officers for their behaviour which may be tantamount to bringing the public service into disrepute,” he said.
He said the disciplinary board can take action against civil servants having extramarital affairs with married women or clients if the disciplinary board can demonstrate that such conduct is immoral.
He said immoral conduct would include kissing in elevators and exchanging pornographic materials.
Wan Ahmad said department heads can refer the officers involved to religious authorities for counselling.
The circular also said disciplinary action can be taken against non-Muslim staff for having an affair with a married Muslim employee, even though they cannot be charged under shariah law.
In a unanimous judgment on Dec 15 last year, a five-member Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat found that Section 498 only criminalises the act if carried out by men.
“We hold that Section 498 is unconstitutional for the reason that it unlawfully discriminates only on the ground of gender, which is violative of Article 8(2),” she said in her written judgment.
Article 8(2) says that except as expressly authorised by the constitution, no law shall discriminate against citizens only on the ground of religion, race, descent, place of birth or gender.