PUTRAJAYA: The Federal Court has affirmed that Prime Minister Najib Razak is immune from a lawsuit for alleged misfeasance in public office as he is not a public officer.
This follows the decision by a three-man bench chaired by Chief Justice Raus Sharif who affirmed the decisions by the Court of Appeal and the High Court.
“We agree with their interpretation. Moreover, the applicants did not meet the threshold of Section 96 of the Courts of the Judicature Act,” he said in dismissing the leave to appeal application by former Umno members Dr Mahathir Mohamad and Khairuddin Abu Hassan.
An applicant must satisfy the court that any legal question framed to obtain leave to hear the merit of the appeal must show the issue is being raised for the first time and is of public advantage.
Raus, however, said the issue involved the interpretation of the Federal Constitution and Federal law.
Mahathir, a former prime minister, and Khairuddin, were ordered to pay RM20,000 in costs to Najib.
Lawyer Cecil Abraham, who represented Najib, told the bench that the leave application should be dismissed as the questions framed did not arise from decisions of both lower courts.
“The applicants also did not satisfy all the ingredients required to prove that Najib is a public officer,” he said , adding that they did not suffer losses as a result of the alleged wrongdoing by the prime minister.
Lawyer Mohamed Haniff Khatri Abdulla said the merit of the case should be heard for the apex court to provide a clear guidance to the lower courts.
“The High Court and the Court of Appeal were wrong to rely on the constitution and the Interpretation Act to define who is a public officer for a tort that originated from the Common Law,” he said.
On Aug 30 , the Court of Appeal, dismissed the appeal of Mahathir, Khairuddin Abu Hassan and Anina Saadudin, saying it had no merit.
(The Federal Court will hear on April 16 Haniff’s application to discharge himself from representing Anina).
On April 28, High Court judge Abu Bakar Jais, in allowing Najib to strike out a suit by the three, said the prime minister could not be sued for abuse of power in office as he was not a public official.
In his 31-page ruling, Abu Bakar said the terms “public officer” and “public office” in the Interpretation Act were only applicable to the class of civil servants as stated under Article 132 (1) of the constitution.
“Clearly the defendant (Najib) is not a member of any services listed in the constitution,” he said.
Further, he said, Article 132(3) stated that the public service excluded the office of any member of the administration in the federation or state.
He said Article 160 (2) further stated that a member of the administration in Putrajaya was meant to be a person holding the office of minister (which includes prime minister), deputy minister or parliamentary secretary and political secretary.
“These provisions, he said, cumulatively would indicate that Najib was not a public officer and did not hold public office.
“It may be most surprising and quite unpalatable to swallow for many on the street that the defendant in his capacity as prime minister or minister of finance is not a public officer in public office,” he said.
He said the provision highlighted clearly indicated that Malaysian legislators, in their own wisdom, had thought it fit and proper not to categorise the prime minister as a public officer.
In their statement of claim filed in March 2016, Mahathir, Khairuddin and Anina said they were among the rightful parties to take action against Najib.
They traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then attorney-general Abdul Gani Patail’s sudden resignation, and the sacking of former deputy prime minister Muhyiddin Yassin.
They said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued from carrying out and concluding the investigations into his alleged misconduct over the RM2.6 billion donation and RM42 million from SRC International.
The plaintiffs wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.
They also wanted Najib to return to the government the money found in his private bank accounts.
However, Najib filed the action to strike out the suit on grounds that it was unsustainable, frivolous and vexatious.
Meanwhile, lawyer Mohamed Hafarizam Harun, who appeared with Abraham, later told reporters public positions defined in the “members of the administration” could not be equated to civil servants as in Article 132 (1).