The PM is not a public officer? I respectfully disagree

The whole concept of misfeasance in public office in Malaysia has been hijacked by a view so narrow that no misfeasance in public office action can be brought against any member of the administration of the country.

COMMENT

By Azhar “Art” Harun

I must preface this post with a disclosure.

I have known High Court judge Abu Bakar Jais for 35 years. We were classmates in the Law Faculty, Universiti of Malaya. I have no reason to question his integrity. I think he did his job honestly and to the best of his ability. He decided in accordance with what he felt was the correct position under the law.

Justice Bakar ruled on Feb 29 that the Prime Minister was not a public officer, in allowing an application by Najib Razak to strike out a lawsuit against him for misfeasance in public office.

However, I have to respectfully disagree with Justice Bakar on this one.

The thrust of his ruling is this:

a) The main ingredient for the tort of misfeasance in public office is that the wrongdoer must be a public officer;

b) The Prime Minister is not a public officer as defined by our laws; and

c) It follows that the Prime Minister cannot be sued for misfeasance in public office.

The core of Justice Bakar’s reasoning is this:

The Interpretation Act 1967 defines “public officer” to mean “a person lawfully holding, acting in or exercising the functions of a public service”. It further defines “public services” to mean “the public services mentioned in Article 132 (1) of the Federal Constitution”.

He then refers to Article 132(3) of the Federal Constitution. That article indeed says:

“The public service shall not be taken to comprise-
(a) the office of any member of the administration in the Federation or a State; or
(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State”

Article 160 (2) of the Federal Constitution states:
“Member of the administration” means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary.”

So, it is obvious to the judge that under the Interpretation Act, read together with the provisions of the Federal Constitution, the Prime Minister is not a “public officer”.

Believe it or not, that is the correct position under the Interpretation Act and the Federal Constitution.

However, for the purpose of a claim in a private action for misfeasance in public office, the Interpretation Act and Federal Constitution are not relevant.

The wrong – or in legal parlance, the tort – of misfeasance in public office is a private law and the action brought by Dr Mahathir Mohamad is a private action. It is the same as a citizen suing another citizen for an accident. That is a private action under the tort of negligence. This tort is not a written law. Nor is it a branch of actions or claims available under public law.

The tort of misfeasance in public office is established by the Common Law. The Common Law is applicable to all of us by virtue of our Civil Law Act. This branch of laws are unwritten and the principles are derived from judicial pronouncements developed over hundreds of years.

Being so, what is and what is not public office/public officer must be determined by the court in accordance with the Common Law.

I don’t want to go into the technicalities of misfeasance in public office. Suffice if I say that this wrong or tort is about:

“The exercise of power by public official, not for the purpose for which it was given, but for some ulterior or impermissible purpose, knowing or being reckless as to whether it would damage the plaintiff.” (per Hale LJ (as she then was) in her seminal judgment in Ammoo Gottfried v Legal Aid Board (unreported, 1st December 2000).

Lord Steyn said that “the rationale of the tort is that in a legal system based on the rule of law executive or administrative power may only be exercised for the public good”, and Lord Hobhouse said that the tort concerned “the acts of those vested with governmental authority and the exercise of executive powers”.

These are stated in the locus classicus for this tort, namely, a case called Three Rivers District Council v The Bank of England that Justice Bakar himself had referred to in his decision.

At the core of this wrong is not the public office/officer in question. Rather it is the exercise of powers of “those vested with governmental authority and the exercise of executive powers”.

Lord Justice Slade, in Jones v Swansea City Council pointed out:

“It is not the juridical nature of the relevant power but the nature of the council’s office which is the important consideration.”

The court is not supposed to delve into the juridical nature of the relevant power. Rather, what is the nature of the office that is in question.

What is the nature of the office of a Prime Minister?

Is it not about making decisions diligently, rationally and honestly having in mind, at all times, the best interests of the nation and the citizenry, or in short, in the best interests of the public?

That was the question that was supposed to be answered.

Instead, the court had taken a pedantic analysis of the juridical nature of the Prime Minister’s office. By doing so, the whole concept of misfeasance in public office in Malaysia has been hijacked by a view so narrow, so much so now, as it stands, the law in Malaysia is that no misfeasance in public office action can be brought against any member of the administration of the country.

In addition, I have to add with respect, there is yet another glaring misapplication of the law by the court in that ruling.

The preamble to the Interpretation Act 1967 that Justice Bakar relied on says:

“An Act to provide for the commencement, application, construction, interpretation and operation of written laws; to provide for matters in relation to the exercise of statutory powers and duties; and for matters connected therewith”.

Section 2 of the Act provides:

“2. (1) Subject to this section, Part I of this Act shall apply for the interpretation of and otherwise in relation to—
(a) this Act and all Acts of Parliament enacted after 18 May 1967;
(b) all laws, whether enacted before or after the commencement of this Act, revised under the Revision of Laws Act 1968 [Act 1];
(c) all subsidiary legislation made under this Act and under Acts of Parliament enacted after the commencement of this Act;
(d) all subsidiary legislation, whether made before or after the commencement of this Act, revised under the Revision of Laws Act 1968;
(e) all subsidiary legislation made after the 31 December 1968, under the laws revised under the Revision of Laws Act 1968.

(2) PART I shall not apply for the interpretation of or otherwise in relation to any written law not enumerated in subsection (1).
(3) PART I shall not apply where there is—
(a) express provision to the contrary; or
(b) something in the subject or context inconsistent with or repugnant to its application”.

Isn’t it obvious, therefore, that the Interpretation Act is only applicable to the interpretation of our written laws?

How could the court then use that Act to define “public officer” when it is actually called upon to adjudicate on a wrong under the Common Law, an unwritten law that is applied in Malaysia?

Meanwhile, article 132 of the Federal Constitution starts with the following:

“132 (1): For the purposes of this Constitution, the public services are:”

Isn’t it obvious that the provisions in article 132 that the court was relying on are there just for the purpose of the constitution? Meaning, those definitions in article 132 are only to be used when other articles in the Federal Constitution make reference to the phrase “public service”.

In other words, the definition of public service in article 132 is not meant for a general application to every law that is applied in this land unless such law clearly imports such definitions.

That is my considered opinion.

Azhar “Art” Harun is a lawyer. -FMT