PUTRAJAYA: The Court of Appeal struck out Tony Pua’s suit against Najib Razak for “abusing” his office in the 1Malaysia Development Bhd (1MDB) affair as the Damansara MP was unable to prove the former prime minister is a public officer.
Justice Yeoh Wee Siam said the bench was also bound by the decision of another Court of Appeal panel that had dismissed an appeal on the same issue brought by former opposition leader Dr Mahathir Mohamad and former Umno divisional leader Khairuddin Abu Hassan.
“We decided to similarly rule that for the purpose of the present case, the 1st defendant (Najib), in his capacity as the prime minister, is not a “public officer”,” Yeoh said in her written judgment made available to the media.
On April 13, the bench consisting of justices Ahmadi Asnawi, Kamardin Hashim and Yeoh dismissed Pua’s appeal.
“As it stands now, therefore, the decision of the Court of Appeal in that case (Mahathir and Khairuddin) is still the authority on the matter. We see no reason or think it appropriate to depart from that decision,” Yeoh said in the 20-page judgment.
She said it was open to Pua to apply for leave and to appeal “our decision to the Federal Court for a final determination of what ‘public officer’ means in the tort of misfeasance in public office in this country”.
“We are of the considered opinion that it is timely either for the Federal Court, or even the legislature if necessary, to decide on or provide for a clear definition of ‘public officer’ for the specific purpose and application in the law of the tort of misfeasance in public office,” she said.
Meanwhile, lawyer Michelle Ng said the Federal Court had fixed Nov 5 to hear Pua’s application for leave to appeal against the Court of Appeal decision.
However, the legal fraternity will be observing very closely a review hearing on Aug 8, filed by Mahathir, now prime minister, and Khairuddin.
The Court of Appeal on Aug 30 last year threw out the appeal of Mahathir and Khairuddin and affirmed the decision of the High Court delivered four months earlier.
On Feb 27, a three-man bench chaired by the then chief justice Raus Sharif refused leave to overturn a Court of Appeal ruling.
Lawyer Mohamed Hanif Khatri Abdulla said the grounds for review were that the former top judge was biased, and the bench had misapplied the law in making its decision.
High Court judge Abu Bakar Jais, in allowing Najib to strike out the suit (by Mahathir and Khairuddin), 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 Federal Constitution.
“Clearly, the defendant (Najib) is not a member of any services listed in the constitution,” he said.
He also said Article 132(3) stated that the public service excluded the office of any member of the administration in the federation or state.
Abu Bakar 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.
In Pua’s case, Judicial Commissioner Faizah Jamaludin on October 13 last year struck out his suit on grounds that she was bound by the Aug 30 Court of Appeal ruling.
Faizah said Pua lacked the legal capacity as taxpayer to file the suit against the company (1MDB) whose majority shareholder was the finance ministry.
Najib’s grounds for the striking-out application are based on the contention that he is not a public official, and that Pua had filed the suit for political purposes.
On Jan 16 last year, Pua filed the suit against the then prime minister for abuse of his public office over 1MBD funds.
Najib has denied any wrongdoing and in January 2016, the previous attorney-general cleared him of any offence.