PUTRAJAYA: The Federal Court may take a longer time to decide whether former prime minister Najib Razak, who was sued for the tort misfeasance in public office over the 1MDB case, is a public officer.
This follows the decision by a seven-member apex court bench today to allow an application by lawyer Mohamed Haniff Khatri Abdulla to first dispose of a leave to appeal application on a similar issue brought by Damansara MP Tony Pua.
The Federal Court registry had fixed Nov 5 to hear Pua’s case.
Today, the bench assembled to hear a review application by Prime Minister Dr Mahathir Mohamad and 1MDB critic Khairuddin Abu Hassan, whose leave to appeal application was dismissed on Feb 27 this year.
Since this is a public interest case, Chief Justice Richard Malanjum headed the bench.
Others on the bench were Court of Appeal president Ahmad Maarop, Chief Judge of Malaya Zaharah Ibrahim, Chief Judge of Sabah and Sarawak David Wong Dak Wah, and Federal Court judges Ramly Ali, Alizatul Khair Osman Khairuddin and Rohana Yusuf.
Haniff, who represented Mahathir and Khairuddin, told the bench Mahathir’s review application could be decided pending the outcome in Pua’s case since the Attorney-General’s Chambers would like to come in as amicus curae (friend of the court).
The duo’s grounds for review were that former chief justice Raus Sharif was biased, and the three-member bench misapplied the law in refusing to grant them leave.
Earlier, Najib’s lawyer Mohamed Hafarizam Harum attempted to disqualify Malanjum, Ahmad, Zaharah and Wong, saying they would be biased as their recent appointments was sanctioned by Mahathir, the current prime minister.
However, the court did not make a ruling since it agreed to hear Pua’s matter first.
Last year, the High Court in allowing Najib to strike out Mahathir and Khairuddin’s suit, held that the then-prime minister could not be sued as he was not a public officer.
High Court judge Abu Bakar Jais 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.
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.
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 the prime minister, deputy minister or parliamentary secretary and political secretary.
In the action filed in 2016, the duo said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued their investigations into his alleged misconduct over RM2.6 billion and another RM42 million found in his private bank account.
The plaintiffs wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.
Pua also filed a similar action against Najib which was dismissed by the High Court on Oct 13 last year and affirmed by the Court of Appeal on April 13 this year.
He has to obtain leave from the Federal Court before the merit of the case can be heard.