PETALING JAYA: Tuesday’s ruling by the Federal Court that Prime Minister Najib Razak is not a public officer has given him and his ministers a “blank cheque to abuse their powers”, a retired judge said.
Gopal Sri Ram said both academics and practitioners would regard this as a retrogressive decision and claimed Malaysia was probably the only Commonwealth country which had stood the law on its head.
“We must now await a future Malaysian court to make the correction,” he told FMT in response to the apex court’s decision, which affirmed that Najib is immune from a lawsuit for alleged misfeasance in public office as he is not a public officer.
The judgment by the three-man bench chaired by Chief Justice Raus Sharif had endorsed the previous 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.
Sri Ram, who retired as Federal Court judge, said the tort of misfeasance in public office is an ancient and well-established tort.
“Lord Diplock in Dunlop v Woolhara said it was a well-established tort. One of the elements of the tort is that the defendant must be a public officer.
“For the purposes of the tort, a public officer is one who receives a salary from the public coffers. He may or may not be a member of the administration for the purpose of the Federal Constitution. That is irrelevant,” Sri Ram said.
He added the leading case on the tort is Three Rivers v Bank of England, which has been applied by Malaysian courts.
“Also by reason of the Civil Law Act, the tort and its common law elements are part of our law. It is therefore not correct to say that the prime minister is not a public officer for the purposes of the tort,” Sri Ram said.
He said the effect of this latest decision is that no minister in Malaysia may be sued in the tort of misfeasance in public office.
High Court ruling
On April 28 last year, High Court judge Abu Bakar Jais, in allowing Najib to strike out a suit by Mahathir, Khairuddin and Anina Saadudin, 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, Bakar said the terms “public officer” and “public office” in the Interpretation Act were only applicable to civil servants as stated under Article 132 (1) of the Federal constitution.
“Clearly the defendant (Najib) is not a member of any services listed in the constitution,” he said.
Further, he said, Article 132(3)(a) stated that the public service excluded the office of any member of the administration in the federation or state.
Bakar said Article 160 (2) then 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.
At the state level, it includes the menteri besar or chief minister and their state executive council members.
On Aug 30 last year, the Court of Appeal affirmed the findings of the High Court.
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.