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.
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.
28 May 2018
Federal Court to hear Dr M’s bid to review suit against Najib
The application by Prime Minister Dr Mahathir Mohamad and Khairuddin Abu Hassan for a review of the Federal Court’s decision on a misfeasance in public office suit they filed against former prime minister Najib Abdul Razak has now been fixed for Aug 6.
The lawyer for Mahathir and Khairuddin, Mohd Haniff Khatri Abdulla, said today the matter was fixed for case management today, following the application for a review of the decision Mahathir and Khairuddin filed on April 26.
“Najib’s lawyer, Caleb Goh from M/s Hafarizam Wan Aisha and Mubarak, asked for an extension of time to file an affidavit in reply to the review application,” Haniff said.
Following that, Federal Court registrar Wan Fatimah Zahra Wan Yusuf fixed Aug 6 for the review hearing.
On Feb 27, a three-member Federal Court bench led by Chief Justice Md Raus Sharif dismissed Mahathir’s and Khairuddin’s application for leave to appeal after the High Court ruled that Najib is not a public officer.
On Aug 30 last year, the Court of Appeal upheld the decision of the High Court to strike out the suit filed by Mahathir, Khairuddin…and former Umno member Anina Saadudin, saying it agreed with the High Court.
30 August 2017
Bid by Dr M and two others against Najib dismissed by appeals court
Wednesday, 30 Aug 2017
PUTRAJAYA: Tun Dr Mahathir Mohamad and two others have lost their bid in the Court of Appeal to pursue their case against Prime Minister Datuk Seri Najib Tun Razak for tort of misfeasance in public office pertaining to 1Malaysia Development Bhd (1MDB).
The former prime minister, aged 92, former Batu Kawan Umno vice chief Datuk Seri Khairuddin Abu Hassan, 54, and former Langkawi Wanita Umno member Anina Saadudin, 41, had appealed against the High Court’s decision to strike out their suit against Najib.
They sued Najib on March 23, 2016 and the prime minister subsequently filed an application on April 19 to strike it out.
On April 28, 2017 the High Court allowed Najib’s application to strike out the suit, ruling that the prime minister was not a public officer but a member of the administration.
On Wednesday, a three-man bench led by Court of Appeal Judge Tan Sri Idrus Harun unanimously decided that Dr Mahathir, Khairuddin and Anina’s appeal had no merit, and affirmed the high court’s decision.
The panel also awarded RM30,000 costs to Najib.
“We agree with the submission of counsel for the respondent (Najib) and we are satisfied that there are no merits in the appeal and therefore we dismiss the appeal,” said Idrus, who sat with Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli
Justice Abu Bakar had cited the federal constitution and the Interpretations Act 1948 and 1967, under which the prime minister, ministers, deputy ministers, and political secretaries are not considered public officials but as members of an administration.
He ruled that Najib, as the prime minister, is not a public officer and hence the suit had no cause of action. He struck out the misfeasance in public office suit filed by former prime minister Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak.
3 May 2017
@chedetofficial appeals against ‘PM not public officer’ ruling
Former premier Dr Mahathir Mohamad and two others today filed their appeal against a High Court decision to strike out their suit against Prime Minister Najib Abdul Razak.
Last Friday, Justice Abu Bakar Jais had ruled that the suit – which seeks to recover RM2.64 billion from Najib – was defective on grounds that the latter was not a public officer but a member of the administration.
The two other applicants are Khairuddin Abu Hassan and Anina Saadudin. The notice was filed by the firm of Messrs Haniff Khatri today.
Najib not public officer: 2 cases in spotlight after ruling
KUALA LUMPUR: At least two cases will now be closely watched following last week’s High Court ruling that Prime Minister Najib Razak is not a public officer although he holds public office.
Today, a Kuala Lumpur High Court will hear former attorney-general Abdul Gani Patail’s application to strike out the tort of misfeasance in public office suit by PKR Youth chief Nik Nazmi Nik Ahmad.
The prosecution in 2015 charged Nik Nazmi again for organising a public rally in 2013 after the Court of Appeal acquitted him of the charge.
Nik Nazmi then filed the suit, alleging that he had been the victim of malicious prosecution.
Gani said his act was purely an exercise of discretion vested in him by law and not done in bad faith.
The second is yet another application by Najib to strike out a suit filed by Petaling Jaya Utara MP Tony Pua for a similar tort over the 1Malaysia Development Bhd (1MDB) funds.
Najib’s grounds for the application was that he is not a public official.
It is unclear if a date has been fixed to hear the prime minister’s application.
Pua, who filed the suit on Jan 16, wants a declaration that Najib had abused his office to personally profit from the funds.
On Friday, High Court Judge Abu Bakar Jais struck out a suit brought by former Umno leaders Dr Mahathir Mohamad, Khairuddin Abu Hassan and Anina Saadudin as they could not prove that Najib was a public officer in public office.
Immediately after the ruling by Abu Bakar, Najib’s lawyer Mohamed Hafarizam Harun said that decision would have an impact in Pua’s case.
However, lawyer S N Nair said the High Courts hearing the other two cases were not bound by Abu Bakar’s ruling.
“The doctrine of binding precedent is not applicable as all High Court judges are of equal standing,” he said.
Nair said the High Court was only bound by a judgment coming from the Court of Appeal or Federal Court.
The lawyer said Abu Bakar’s ruling would also appear to indicate that Gani would fail in his attempt to strike out the suit because he was a public officer in his capacity as AG from the legal and judicial service.
30 April 2017
Dr M: If CM is public officer, is PM a coolie?
Former premier Dr Mahathir Mohamad is puzzled with the Kuala Lumpur High Court’s decision to dismiss his suit against Prime Minister Najib Abdul Razak for misfeasance in public office.
In striking out the suit filed by Mahathir and two others, justice Abu Bakar Jais ruled that Najib, as the prime minister, is not a public officer as defined in the federal constitution, and hence the suit has no cause of action.
Mahathir in response asked if that were the case, then what would the prime minister be.
Citing the case of Penang Chief Minister Lim Guan Eng, who has been charged with corruption, Mahathir pointed out how Lim is facing trial despite his position as chief minister.
“In the case of Guan Eng, he is ( considered a public officer),” Mahathir told Malaysiakini.
“So if the chief minister is a public figure, is the prime minister a coolie?” he quipped.
If Najib not a public officer, then what is he?
29 April 2017
‘Court let people down by rejecting suit on pedantic ground
Constitutional law expert Abdul Aziz Bari is of the opinion that it is possible for the court to take a broader interpretation of what a public officer is.
This, he said, is especially so when it comes to enforcing responsibility and accountability on the government of the day.
“This is an example where pedantic, literal and rigid approach of the law may lead to undemocratic decisions by the court,” said Abdul Aziz in a statement to Malaysiakini.
He added that the notion of public officers or public servants may be taken broadly such as in corruption cases so that the ideal of the law and the Federal Constitution may be put into effect.
Abdul Aziz was responding to the High Court in Kuala Lumpur which had struck out a misfeasance in public office suit filed by former prime minister Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak.
Justice Abu Bakar Jais ruled that Najib, as the prime minister, is not a public officer and hence the suit had no cause of action.
However, Abu Bakar, said Abdul Aziz, had “let the people down” by rejecting the suit on those technical and pedantic grounds.
“The court has a role, especially when other institutions such as Parliament, the Yang di-Pertuan Agong and others have chosen to abdicate their duties.
“Not to forget the attorney-general though such is not unexpected given that the holder is essentially part of the sitting government.”
Sri Ram: Dr M suit based on established tort, Constitution irrelevant
Kuala Lumpur High Court judge Abu Bakar Jais has got it all wrong when he decided to strike out the suit filed by former premier Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak, says former Federal Court judge Gopal Sri Ram.
Sri Ram, who had served in the Court of Appeal for 15 years before being elevated to the highest court in 2009, said the action brought by Mahathir is based on the well-established common law tort of misfeasance in public office.
“It is not brought under an act of parliament. It is also not an action brought for violation by the executive of a constitutionally-guaranteed right.
“Therefore, neither the Federal Constitution nor the Interpretation Acts have any relevance to establishing who is a public officer for the purposes of the tort of misfeasance in public office.
“There is, therefore, a fundamental error in the judgment. And the judge is as wrong as wrong can be,” he said.
Sri Ram, who has seen a copy of the judgment, was asked to comment on the decision yesterday.
29 April 2017
Saturday, 29 Apr 2017
‘The PM is not a public officer’
KUALA LUMPUR: In a landmark judgment, the High Court has ruled that the Prime Minister is not a public officer in public office.
It held that the premier is also not in public services as defined under the Federal Constitution but “a member of administration”.
High Court judge Abu Bakar Jais made this observation in allowing an application by Datuk Seri Najib Tun Razak to strike out a lawsuit against him for misfeasance in public office.
Najib succeeded in striking out a lawsuit by Tun Dr Mahathir Mohamad and two others against him for alleged wrongful exercise of authority in public office.
Justice Abu Bakar ordered the plaintiffs to pay Najib RM30,000 in legal costs.
In a written judgment to the media later, Justice Abu Bakar said the suit was obviously “unsustainable”.
“There is actually no reasonable cause of action and as a whole, on the facts and laws, the claim is frivolous and vexatious.
“It is fundamental to appreciate that a suit can only stand based on the law that is applicable.
“Our laws, no matter how unreasonable they may be perceived, do not permit the plaintiff’s suit,” added Justice Abu Bakar.