Judge explains why Najib is not a public official

High Court judge Abu Bakar Jais in his controversial ruling yesterday that Prime Minister Najib Abdul Razak is not a public official or public officer has detailed his grounds for the judgment in his 31-page decision.

Justice Abu Bakar said Najib's lawyers argued that in initiating the suit, former Umno leaders Dr Mahathir Mohamad, Khairuddin Abu Hassan and Anina Saadudin must first prove the offices that Najib occupies - as prime minister, finance minister, BN chairperson and Umno president - are all public offices.

“The defendant maintained he is not a public officer and therefore cannot be liable for the tort of misfeasance in public office,” the judge said in throwing out the suit.

Najib, he noted, also contended there is no fiduciary duty owed by him as PM, finance minister, BN chairperson and Umno president to the plaintiffs.

“There is no mutual trust and confidence placed between the parties for a fiduciary relationship to exist,” Justice Abu Bakar said.

This is despite the lawyers for the three, led by Haniff Khatri Abdulla, telling the court that Najib owes fiduciary duties to Malaysians at large, and the court ought to be the “supreme policing authority” as Najib holds the office of prime minister for the benefit of all Malaysians, including those who initiated the suit.

While noting that there are perhaps strong reasons for Mahathir, Khairuddin and Anina to sue the prime minister, Justice Abu Bakar said they must first prove that the positions that Najib holds are public offices.

In his decision, the judge said there may be millions of people who would support and understand why the plaintiffs are suing Najib.

“But for all and sundry, it is fundamental to appreciate a suit can only stand based on the law that is applicable. Our own law as explained, no matter how unreasonable it may be perceived, does not permit the plaintiffs’ suit,” the judge of the High Court in Kuala Lumpur explained.

Therefore, Justice Abu Bakar found the suit by Mahathir, Khairuddin and Anina to be “frivolous and vexatious” and struck it out without hearing the merits of the suit in a full trial.

Why PM not a public official

Justice Abu Bakar pointed to Section 3 of the Interpretations Act, which he said needed to be proven to show Najib is a public officer and he is in a position in public office.

The section defines public office as an office in any of the public services and public officer means “a person lawfully holding, acting in or exercising the functions of a public service”.

Article 132(1) of the Federal Constitution, the judge said, defined what public services are.

Article 132(1) states that public services comprise the armed forces, the judicial and legal service, the general public service of the federation, the police force, the education service, the joint public services and public services of each state.

“This provision (in the constitution) shows Najib is not a member of any of the services listed under this provision of the Federal Constitution,” the judge said.

Justice Abu Bakar reinforced his finding by noting Article 132 (3) of the Federal Constitution, which states the public service shall not be taken to comprise the office of any member of the administration in the federation or a state or, the office of president, speaker, deputy president, deputy speaker or member of either House of Parliament, the office of judge of the Federal Court, the Court of Appeal or a High Court, and the office of a member of any commission or council established by the constitution and the diplomatic posts as the Agong may by order prescribe.

He further looked at Article 160 (2) of the Federal Constitution, which states members of the administration means in relation to the federation - a person holding office as minister, deputy minister, parliamentary secretary or political secretary and in relation to a state.

“Article 132(3) of the Federal Constitution lists down the offices that are to be excluded as public services, one of which is the office of any member of the administration in the federation or a state.

“And who is the member of administration? It includes the defendant (Najib) by virtue of Article 160 (2) of the Federal Constitution, where a minister includes the PM as seen in the definition of minister in the Interpretations Act.

“These provisions cumulatively will indicate that Najib is not a public officer and does not hold public office,” Justice Abu Bakar said.

Najib’s contradiction

The judge conceded that it may be “most surprising and quite difficult or unpalatable to swallow” for many Malaysians that Najib, in his capacity as the PM or finance minister, is not a public officer in public office.

“But the provisions highlighted clearly indicate our legislature, in their wisdom, had thought it fit and proper not to categorise the defendant (Najib) as a public officer,” he said.

“It is most cliché to stress that the court should decide a case based only on the law applicable, no matter how unpopular the judge might be because of the decision.

“In this regard, it is trite that a court should not usurp the function of the legislature by imposing its own words or ingeniously interpreting and stretching the clear words of the provisions.”

Justice Abu Bakar also addressed the contradiction in Najib's affidavit in seeking to strike out the application, where he said he is not a public officer but asserting that the three plaintiffs wanted to drive him out of public office.

“I accept there is a contradiction on Najib's part under the circumstance. But what is the real effect of this contradiction?

“Can this contradiction be taken to mean Najib is a public officer? I am not prepared to rule so because of the clear provisions of the Interpretations Act and the Federal Constitution, which have been alluded earlier.”- Mkini