Time to provide clear definition of public officer, says COA

An appellate court judge has proposed that the apex court or the legislature provides a clear definition of what comprises a public officer.

This is crucial, in the event that a misfeasance in public office suit, like the one filed by DAP national publicity secretary Tony Pua against former prime minister Najib Abdul Razak and the government, be filed again.

In saying so, Justice Yeoh Wee Siam said the Court of Appeal was bound by the Federal Court decision in a suit filed by current Prime Minister Dr Mahathir Mohamad against Najib, where it upheld the decision by two previous courts that Najib was not a public officer.

She said this in a 20-page judgment agreed with by two other Court of Appeal judges who sat with her in April this year, which upheld the decision of the High Court in Kuala Lumpur to strike out Pua's suit.

Mahathir, along with former Umno members Khairuddin Abu Hassan and Anina Saadudin, had filed a suit against Najib for misfeasance in public office and breach of fiduciary duty in 2016, in the wake of the 1MDB scandal.

A year later, Pua filed a misfeasance in public office suit against Najib in January 2017.

Pua claimed Najib was a public officer since he was the Pekan MP, the prime minister and chairperson of the 1MDB board of advisors, and that in those capacities, he had a direct role in 1MDB to approve appointments and removals in the company.

In October last year, the High Court in Kuala Lumpur struck out Pua's suit on the grounds that Najib is not a public officer.

In April this year, the Court of Appeal in a bench led by Justice Ahmadi Asnawi, and which included Justice Yeoh, upheld the High Court decision.

‘Two different entities’

Justice Yeoh said that in the Mahathir case, the Court of Appeal defined "public officer” and “Prime Minister” as two different entities.

"They are intended by Parliament to be different (Parliament does not legislate in vain). In fact, Article 132(3) of the Constitution expressly provides that the 'public service' shall not be taken to comprise the office of any 'member of the administration', to which Najib belongs to."

The judge added that a public officer is appointed by the Public Services Commission, whereas a prime minister is appointed by the Yang di-Pertuan Agong.

Thus, she said, "the prime minister is not a public officer, and a public officer is not a prime minister".

"The prime minister is a ‘member of the administration’ whereas a public officer is a member of the ‘public services’. The distinction is plain and obvious," Justice Yeoh said, citing the Court of Appeal judgment in Mahathir’s case.

Hence, she said the court could not invoke common law principles, which would typically apply to public officers, when there was legislation showing the distinction between a public officer and a member of an administration.

Justice Yeoh added that unless the decision of the Court of Appeal in Mahathir’s case was overruled by the Federal Court, it was open to Pua to “apply for leave and to appeal our decision to the Federal Court for a final determination of what ‘public officer’ means in the tort of misfeasance in public office in this country”.

"We are of the considered opinion that it is timely, either for the Federal Court, or even the legislature if necessary, to decide on or provide for a clear definition of ‘public officer’ for the specific purpose and application in the law of the tort of misfeasance in public office," she said in her written judgment.

As this court is bound by the Federal Court decision in Mahathir’s case, Justice Yeoh said Pua's suit against Najib for misfeasance in public office is doomed to fail.

"In view of our decision that Najib is not a public officer, it follows that Pua's claim against Najib is obviously unsustainable and ought to be struck out.

"Consequently, Pua's claim against the government, grounded on the latter’s vicarious liability for Najib, cannot be sustained at all and ought to be struck out," she said in the written judgment obtained.

Pua's application for leave to appeal in this case has been fixed for Nov 5 before the Federal Court, while Mahathir's review application of the apex court judgment is fixed for Aug 6. -Mkini