Court rules Pua can sue Najib for abuse of power in office

PUTRAJAYA: The Federal Court in a landmark ruling today decreed that former prime minister Najib Razak was a public officer and could be sued for allegedly abusing his power while in office.

Judge Nallini Pathmanathan said the suit brought against Najib by Damansara MP Tony Pua over 1MDB appeared to contain the necessary elements to constitute a valid claim.

“Whether or not he will succeed at trial is a question of evidence, particularly in relation to the alleged damage he suffered,” she said.

The apex court also sent back Pua’s suit for hearing before a High Court.

Lawyer Surendra Ananth, who appeared with counsel Malik Imtiaz Sarwar, said the case will be mentioned on Nov 26.

Nallini said the provision of the Government Proceedings Act (GPA) 1956 envisaged that a claim could be brought against a public officer as provided for in Section 5.

“This would include a claim against a prime minister, who is a public officer as envisaged under the act,” she added.

She also said the Federal Constitution and Interpretation Act which exclude members of the administration do not apply to the tort of misfeasance in public office.

However, the government can only be found vicariously liable if Pua proves his case against Najib in trial.

The other judges who heard the appeal in April were Chief Justice Tengku Maimun Tuan Mat, Court of Appeal president Ahmad Maarop, Chief Judge of Malaya Azahar Mohamed, and Federal Court judges Rohana Yusof, Mohd Zawawi Salleh and Alizatul Khair Osman Khairuddin.

Pua, who is the political secretary of Finance Minister Lim Guan Eng, filed the suit in early 2017, including 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 GPA, and whether the definition of “public officer” should be confined to what is stated in the constitution.

Malik submitted before the bench in April that the GPA must be read in a way that allows litigants to 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.

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 saying he had failed to show he was an aggrieved party and 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 dismissed an appeal on the same issue brought by former opposition leader Dr Mahathir Mohamad and former Umno divisional leader Khairuddin Abu Hassan.