Dr M presses on with misfeasance suit against Najib

Former prime minister Dr Mahathir Mohamad and two others have filed a motion for leave to appeal to the Federal Court on their RM2.64 billion misfeasance in public office and breach of fiduciary duty suit against Prime Minister Najib Abdul Razak in relation to 1MDB.

This follows the decisions of the High Court and the Court of Appeal in striking out the suit filed by Mahathir, Khairuddin Abu Hassan and former Parti Pribumi Bersatu Malaysia member Anina Saadudin, on grounds that Najib is not a public officer.

The motion, in which four questions of law are posed, was filed by the law firm of Haniff Khatri Abdulla with the Federal Court registrar today:

• Can the causes of action premised on the common law causes of action of misfeasance in public office and breach of fiduciaries in public office, given within the Federal Constitution and Interpretation Act, give meaning to those causes of action?
   
• Are the torts of misfeasance in public office and breach of fiduciaries in public office actually concerned with the nature of work of the person itself, rather than the "chair or position held" by the person, that is, the act and conduct carried out by the person concerned in itself public in nature or not?
   
• When all avenues available under the Constitution are no longer effective, is it not the duty of the courts to carry out the constitutional responsibility to check and balance the executive arm of the government by recognising ''causes of action", which may not have had the need to be recognised before, to ensure the Constitution does not become paralysed and ineffective?
   
• Can all the above questions in law be disposed of by way of a summary application under Order 18 Rule 19 of the Rules of Court 2012?

Mahathir, Khairuddin and Anina had filed the RM2.6 billion suit in the High Court in Kuala Lumpur on March 23 last year, naming Najib as the sole defendant, where among others they want Najib to repay the RM2.6 billion which had been deposited into the PM's bank account and the additional RM42 million said to be from SRC International Sdn Bhd, a subsidiary of 1MDB.

On Aug 30, the Court of Appeal disposed of the trio's appeal, with Court of Appeal judge Idrus Harun, who was formerly the solicitor-general, ruling that they agreed with the High Court decision that Najib is not a public officer.

“We agree with the learned judge’s (of the High Court) decision. There is no merit in the appeal. We affirm the decision of the High Court,” said Justice Idrus, who also ordered Mahathir, Khairuddin, and Anina to pay RM30,000 in costs.

The other judges were Justice Vernon Ong and Justice Abdul Rahman Sebli.

On April 28 this year, High Court judge Abu Bakar Jais allowed Najib's striking out application and ordered that the suit need not go for full trial when he ruled that Najib is not a public officer but a member of the administration.

The finding was criticised by former Federal Court judge Gopal Sri Ram, who argued that there was a fundamental error in the decision as Mahathir and the others brought the suit based on the well-established common law tort of misfeasance in public office.

The outcome of this appeal is expected to affect on-going suits against Najib, as he also faces a suit by Petaling Jaya Utara MP Tony Pua and another from former de facto law minister Zaid Ibrahim, on the same issue.

These suits are pending in the High Court, with Zaid also asking for details of Najib's accounts in Ambank in a discovery application.- Mkini