PUTRAJAYA: The prime minister and his Cabinet members cannot be excluded from being sued if they abuse their office as that will place them above the law, the Federal Court heard today.
Lawyer Malik Imtiaz Sarwar said aggrieved parties would be denied access to justice if members of the executive were given legal immunity.
“Under Article 8 of the Federal Constitution, no one is above the law and everyone enjoys equal protection of the law,” the lawyer told a seven-member bench chaired by acting Chief Justice Ahmad Maarop.
Malik said this in an appeal brought by Damansara MP Tony Pua, who is suing former prime minister Najib Razak for “abusing” his office over the 1Malaysia Development Bhd (1MDB) affair.
Pua, who is the current political secretary to Finance Minister Lim Guan Eng, filed the suit in early 2017 and included Putrajaya as party to his action.
Late last year, the Federal Court allowed two questions to be brought up at Pua’s full hearing, namely whether the prime minister or other ministers are public officers under the Government Proceedings Act (GPA), and whether the definition of “public officer” should be confined to what is stated in the constitution.
Malik today said the GPA must be read in a way that litigants could hold the government responsible for the conduct of the executive.
“A litigant must be able to obtain judgment for the tort of misfeasance in public office when the government is brought in for being vicariously liable,” he said.
Government lawyer Alice Loke Ying Ching submitted that Pua could not sue Putrajaya for vicarious liability for the act and conduct of the then prime minister.
“Since Najib is not a public officer, the appellant (Pua) cannot drag the government in,” she said, adding that the former prime minister could be sued in his personal capacity.
Lawyer Mohd Hafarizam Harun, who is representing Najib, said the abuse of public office was a common law civil practice that was not applicable in Malaysia because the constitution and written law here excluded it.
He 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.
Hafarizam said Article 160 (2) 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.
The lawyer said Pua could sue Najib for the tort of conversion where someone intentionally interferes with the property belonging to another.
In his statement of claim filed in January 2017, Pua explained why 1MDB was set up, the transactions that took place in relation to the issuance of two bonds, and how part of the funds was allegedly transferred to Najib’s private accounts.
However, the High Court struck out his suit, saying he lacked the legal capacity as a taxpayer to sue 1MDB, whose majority shareholder is the finance ministry.
Last year, the Court of Appeal struck out Pua’s suit as he had failed to show he was an aggrieved party and that he had failed to prove that Najib was a public officer.
Justice Yeoh Wee Siam, a member of that three-member bench, said it 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.
The court adjourned decision to a date to be fixed later.