This article first appeared in The Edge Financial Daily on November 20, 2019

PUTRAJAYA: In a landmark judgement, the Federal Court ruled that the prime minister and ministers are public officers, meaning they can be sued for misfeasance in public office, and the government can be held vicariously liable for any wrongdoing they committed.

The unanimous decision was made by a seven-member bench led by Chief Justice Tan Sri Tengku Maimun Tuan Mat (pic), but it was Federal Court Judge Datuk P Nalini who wrote the judgement and read the summary of the decision.

The bench answered two questions of law posed by Damansara member of Parliament Tony Pua, appealing the Court of Appeal and the High Court’s decisions:

Does the tort of misfeasance in public office apply to the prime minister as a public officer?

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 1Malaysia Development Bhd fiasco (1MDB).

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

Yesterday’s ruling corrected a decision in Tun Dr Mahathir Mohamad and Khairuddin Abu Hassan’s suit against Najib and the government on the same issue where an earlier bench upheld the Court of Appeal and the High Court’s decisions that the PM and cabinet members are members of the administration and not public officers.

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.

The court further ruled that Pua’s suit can be reinstated if he wishes to do so, but the suit would be decided again after a trial in the High Court.

Besides Justices Tengku Maimun and Nalini, the others on the panel were Court of Appeal president Tan Sri Ahmad Ma’arop, Chief Judge of Malaya Tan Sri Azahar Mohamed, and Federal Court Judges Justices Datuk Rohana Yusof and Datuk Mohd Zawawi Salleh.

Another Federal Court judge, Justice Datuk Alizatul Khair Osman Khairuddin, has just retired.

Pua was represented by Datuk Malik Imtiaz Sarwar, while senior federal counsel Alice Loke appeared for the government.

Malik said this is a good decision that upheld the rule of law.

Najib is asked to pay costs of RM30,000, and the apex court has fixed Nov 26 for mention at the High Court.

The court did not make any order as to costs to be paid by the government.