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Wednesday, May 10, 2017

'Court shouldn't rely on written laws in striking out Dr M's suit against PM Najib'



The High Court should not have relied on written legislation or the Federal Constitution in its decision to strike out the misfeasance in public office suit filed by Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak.
According to president of the Malaysian Bar George Varughese explained that tort of misfeasance in public office is derived from British common law, which is unwritten but fully applicable in Malaysia.
"The action was therefore not brought under the Federal Constitution or any written legislation, and the High Court should therefore not have relied on either of these in determining whether the prime minister is a public officer.
"The nature of the powers of the office of the prime minister ought to have been examined to determine whether that office qualifies as a public office under common law," said Varughese in a statement today.
In striking out the suit, Justice Abu Bakar Jais had ruled that Najib, as the prime minister, is not a public officer and hence the suit has no cause of action.
malaysiakini.com/news/380634 (striking out)
Justice Abu Bakar based his decision on Article 132 of 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.
Narrow interpretation
Varughese said this narrow interpretation and reasoning are troubling, and irreconcilable with established principles in that particular area of law.
"The rigid approach to the application of common law and to the tort of misfeasance in public office in Malaysia is regrettable," he said.
The focus of the tort, a wrongful act leading to civil legal liability, in this case is on the nature of the powers in question, he said, and not on the person exercising the powers.
Misfeasance in public office is rationally a tort because in any legal system based on the rule of law, executive powers must be exercised for the good of the public, he explained.
"The High Court's decision thus runs contrary to the recognition and use of common law in our legal system," Varughese said.
Deserves of full trial
The decision to strike out this suit seems to suggest that the prime minister owes no fiduciary duty and is not answerable to the public if he misuses the powers of his office, he said.
This is despite the fact that the prime minister holds office based on trust from the electorate and is paid from public funds for the powers he exercises, he said.
"This flies in the face of the rules of democratic governance," he said.
The lawsuit also involves matters of public interest, he said, that is the 1MDB saga and the allegations against Najib involving the RM2.6 billion deposited into his personal accounts.

"This was therefore not a plain and obvious unsustainable claim that deserved to be dismissed summarily, but should have been allowed to proceed to trial for determination of the merits of the claim," he said.
Najib has consistently denied abusing public funds and the attorney-general has also cleared the prime minister in these matters.
Mahathir, Khairuddin Abu Hassan and Anina Saadudin had filed the RM2.642 billion suit in the High Court in Kuala Lumpur on March 23 last year, naming Najib as the sole defendant.- Mkini

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