Friday 29 Mar 2024
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KUALA LUMPUR (Nov 26): Datuk Seri Najib Razak faces yet another legal battle as the High Court has directed the former prime minister and ex-finance minister to file his defence by Dec 30, after a suit filed by Damansara MP Tony Pua against him over misfeasance in public office involving 1Malaysia Development Bhd (1MDB) was reinstated by the Federal Court last week.

The suit will now be heard before a new High Court judge, Justice Datuk Rozana Ali Yusoff.

The matter was revealed by Pua's lawyer Tan Cheng Leong to theedgemarkets.com.

Appearing for Najib was lawyer Norhazira Abu Haiyan while senior federal counsel Habibah Haron appeared for the government.

Tan said Pua had yet to make a decision on whether to proceed with the suit, but the court has, in the meantime, fixed the dates for Najib to file his defence.

"A case management date of Jan 6, 2020 has been fixed following the submission of Najib's defence," he said.

The case managed today was heard before Federal Court deputy registrar Syahrin Jeli Bohari.

It was reported last week that a seven-member Federal Court bench, in a landmark judgment, overturned a decision by the High Court and Court of Appeal to strike out Pua's suit and reinstated it on the grounds that the prime minister and ministers can be sued for misfeasance — which is the abuse of authority — as they are public officers and the government can be held vicariously liable.

The apex court bench was led by Chief Justice Tan Sri Tengku Maimun Tuan Mat, but the written unanimous judgment was made by Justice Datuk P Nalini.

The decision last week departs from an earlier decision made by the apex court in a similar suit by Tun Dr Mahathir Mohamad and Khairuddin Abu Hassan against Najib on the same 1MDB matter that ruled Najib was not a public officer but a member of the administration.

Najib himself is presently facing 25 charges — four for abuse of power and 21 for money laundering, in relation to 1MDB where the trial is before Justice Collin Lawrence Sequerah.

In last week's decision, Justice Nalini answered two questions of law in the affirmative. The questions are:

  1. Does the tort of misfeasance in public office apply to the prime minister as a public officer?
  2. Can the government be vicariously liable for the acts of Datuk Seri Najib Razak if the tort is proven against him under the Government Proceedings Act 1956?

Pua, in January 2017, sued then prime minister Najib and the government for the wrongful use of public authority in the 1MDB fiasco. The DAP national publicity secretary alleged that Najib had abused his public office and benefitted from receiving money from 1MDB, which are public funds.

Why PM, ministers not just 'members of the administration'
On ruling why the PM and ministers should not be defined only as "member[s] of the administration" as per the Federal Constitution, Justice Nalini said the reasoning and interpretation of 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 explained.

Quoting a foreign judgement, Justice Nalini said the tort of misfeasance in public office is in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes.

"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 said.

Nalini said a purposive reading of Article 132 reflects the administrative structure envisaged for the governance and operation of the Federation, and not to determine who can be held liable for misfeasance while holding public office.

"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.

"Therefore there was no express legislative intent in either the Federal Constitution or the Interpretation Acts to abrogate the common law definition of the term 'public officer'," she ruled.

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