Thursday, November 21, 2019

The Prime Minister Can Be Sued

In a landmark judgement, the Federal Court ruled Tuesday that the Prime Minister and ministers are public officers, which means that they can be sued for misfeasance in public office, and the government can be held vicariously liable for any wrongdoing they committed. 

The decision was made by a seven-member bench led by Chief Justice Tengku Maimun Tuan Mat – and Federal Court judge P Nalini wrote the judgment and read the summary of the unanimous decision. 

The bench answered two questions of law posed by Damansara MP Tony Pua (left), who is appealing a Court of Appeal and High Court decision. 

The queries are: 

Is the tort of misfeasance in public office available against the then Prime Minister of Malaysia, as an individual holding public office or as a public officer? 

Can the government be vicariously liable for the acts of Najib Razak if the tort is proven against him under the Government Proceedings Act 1956? 

Pua had in January 2017 sued the then-PM Najib (right) and the government for misfeasance – which means the wrongful use of lawful authority – in public office over the 1MDB debacle. 

The DAP national publicity secretary had alleged that Najib had abused his public office and had benefited from receiving money from 1MDB, which are, after all, public funds. 

With the said decision on November 19, 2019, it corrected a decision in Mahathir Mohamad and Khairuddin Abu Hassan's suit against Najib and the government on the same issue where an earlier bench had upheld the Court of Appeal and the High Court's decision that ruled the PM and members of the Cabinet are members of administration and not public officers. 

Najib is presently facing a host of 1MDB-related charges. 

On ruling why the PM and ministers should not be defined only as "member[s] of administration" as per the Federal Constitution, Justice Nalini said the reasoning and interpretation of these Articles 132(1) and (3) are untenable as those articles are to be construed purely in the context of, and for the purposes of, the Constitution. 

"To that end the definition of 'public service' stipulated there is intended to apply to the Federal Constitution and not to the definition of a public officer under the common law", she had explained. 

"This means that ministers are no less holders of public office in the context of misfeasance in public office. They derive their salary from the public purse and carry out their functions with a public purpose”, she clarified further. 

Nalini said the Federal Court also accepted the tort of misfeasance in public office in the Keruntum Sdn Bhd vs The Director of Forests case and others, where the Sarawak Chief Minister was treated as a public officer or a person holding public office. 

She highlighted: "The tort serves to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity". 

She made it clear that as the court ruled the PM and ministers are public officers, therefore, the government can be held liable for their acts in public office. 

Besides Justices Tengku Maimun and Nalini, also on the panel were Court of Appeal president Ahmad Ma'arop, Chief Judge of Malaya Azahar Mohamed, and Federal Court judges Justices Rohana Yusof and Mohd Zawawi Mohd Salleh. 

The other Federal Court judge, Justice Alizatul Khair Osman Khairuddin, has just retired.

Let the lawsuits against Najib and his Cabinet begin!

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