Dr Mahathir upset at Federal Court ruling that Najib not a public officer

DR Mahathir Mohamad has expressed disappointment over today’s Federal Court ruling that Prime Minister Najib Razak is not a public officer, and therefore, is immune from a suit over alleged misfeasance in public office. The former prime minister’s appeal for leave was dismissed this morning by a three-man bench chaired by Chief Justice Md Raus Sharif, who affirmed the decisions of the Court of Appeal and high court. “I don’t understand (the decision). He is a public officer, otherwise, he wouldn’t be where he is because whatever he does involves the government and involves the public. “I’m very upset at the decision,” Dr Mahathir told reporters at the Kuala Lumpur High Court. To a question, Dr Mahathir responded: “Who is the judge? I have my doubts about the legality of his position. I feel he should not listen to this case.” Dr Mahathir had earlier applied for Raus to recuse himself from the case, as the Pakatan Harapan chairman had filed for a judicial review in September last year, challenging the constitutionality of Raus’ appointment as chief justice. Today, Raus ruled that Dr Mahathir’s appeal did not have merit and failed to meet the requirements set by Section 96 of the Courts of the Judicature Act. Dr Mahathir and former Batu Kawan Umno division leader Khairuddin Abu Hassan had filed the suit in March 2016, seeking a declaration that Najib had committed the tort of misfeasance, or wrongful exercise of lawful authority, as well as a breach of fiduciary duty in public office. Dr Mahathir also commented on DAP leader Tony Pua’s failed interim injunction appeal on February 14, when the Court of Appeal took judicial notice that Najib did not commit any wrongdoing with regard to the 1Malaysia Development Bhd scandal. Justice Yaacob Md Sam said the prime minister had been cleared by the Public Accounts Committee (PAC), attorney-general, police, Malaysian Anti-Corruption Commission and Bank Negara Malaysia. “The evidence regarding 1MDB has not been shown to the courts and the public,” Dr Mahathir told reporters today. “The public wants to know. There are three reports against Najib on 1MDB, by Bank Negara, MACC and also PAC. “Why are these reports hidden? Criminal action by any government officer does not constitute an official secret. Official secrets are not about criminal acts. “So, it is wrong to put these three reports under the Official Secrets Act. It’s a case of hiding, and if you hide evidence of a crime, you are committing a crime.” Dr Mahathir’s lawyer, Haniff Khatri Abdulla, said an application for a review of today’s Federal Court decision would be filed soon. “In the application of leave, we just have to show there’s a constitutional issue. Whether there’s a legal issue for the Federal Court to determine an order for us to get leave, that’s to be determined at the appeal stage. “You’re not supposed to decide now. I would say the Federal Court has failed to apply the correct principles in determining whether leave is to be granted or not.” Dr Mahathir and Khairuddin were ordered by Raus to pay RM20,000 in costs to Najib. – February 27, 2018. – The Malaysian Insight, 27/2/2018

Ex-judge: PM not public officer is a regressive ruling

We must now await a future Malaysian court to make the correction, says Gopal Sri Ram. Tuesday’s ruling by the Federal Court that Prime Minister Najib Razak is not a public officer has given him and his ministers a “blank cheque to abuse their powers”, a retired judge said. Gopal Sri Ram said both academics and practitioners would regard this as a retrogressive decision and claimed Malaysia was probably the only Commonwealth country which had stood the law on its head. “We must now await a future Malaysian court to make the correction,” he told FMT in response to the apex court’s decision, which affirmed that Najib is immune from a lawsuit for alleged misfeasance in public office as he is not a public officer. The judgment by the three-man bench chaired by Chief Justice Raus Sharif had endorsed the previous decisions by the Court of Appeal and the High Court. “We agree with their interpretation. Moreover, the applicants did not meet the threshold of Section 96 of the Courts of the Judicature Act,” he said in dismissing the leave to appeal application by former Umno members Dr Mahathir Mohamad and Khairuddin Abu Hassan. Sri Ram, who retired as Federal Court judge, said the tort of misfeasance in public office is an ancient and well-established tort. “Lord Diplock in Dunlop v Woolhara said it was a well-established tort. One of the elements of the tort is that the defendant must be a public officer. “For the purposes of the tort, a public officer is one who receives a salary from the public coffers. He may or may not be a member of the administration for the purpose of the Federal Constitution. That is irrelevant,” Sri Ram said. He added the leading case on the tort is Three Rivers v Bank of England, which has been applied by Malaysian courts. “Also by reason of the Civil Law Act, the tort and its common law elements are part of our law. It is therefore not correct to say that the prime minister is not a public officer for the purposes of the tort,” Sri Ram said. He said the effect of this latest decision is that no minister in Malaysia may be sued in the tort of misfeasance in public office. High Court ruling On April 28 last year, High Court judge Abu Bakar Jais, in allowing Najib to strike out a suit by Mahathir, Khairuddin and Anina Saadudin, said the prime minister could not be sued for abuse of power in office as he was not a public official. In his 31-page ruling, Bakar said the terms “public officer” and “public office” in the Interpretation Act were only applicable to civil servants as stated under Article 132 (1) of the Federal constitution. “Clearly the defendant (Najib) is not a member of any services listed in the constitution,” he said. Further, he said, Article 132(3)(a) stated that the public service excluded the office of any member of the administration in the federation or state. Bakar said Article 160 (2) then stated that a member of the administration in Putrajaya was meant to be a person holding the office of minister (which includes prime minister), deputy minister or parliamentary secretary and political secretary. At the state level, it includes the menteri besar or chief minister and their state executive council members. On Aug 30 last year, the Court of Appeal affirmed the findings of the High Court. In their statement of claim filed in March 2016, Mahathir, Khairuddin and Anina said they were among the rightful parties to take action against Najib. They traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then attorney-general Abdul Gani Patail’s sudden resignation, and the sacking of former deputy prime minister Muhyiddin Yassin. They said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued from carrying out and concluding the investigations into his alleged misconduct over the RM2.6 billion donation and RM42 million from SRC International. The plaintiffs wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office. They also wanted Najib to return to the government the money found in his private bank accounts. However, Najib filed the action to strike out the suit on grounds that it was unsustainable, frivolous and vexatious. – FMT, 1/3/2018 Source : Charles