Najib directed to file defence against misfeasance in public office lawsuit

Former prime minister Najib Abdul Razak has been directed to file his statement of defence against Damansara MP Tony Pua’s misfeasance in public office lawsuit by Dec 30.

Pua’s counsel Tan Cheng Leong confirmed that this was the outcome from the case management before deputy registrar Syahrin Jeli Bohari at the Kuala Lumpur High Court Registry this morning.

“Direction has been given for the defendants, Najib Abdul Razak and the government, to put in (their) defence by Dec 30,” he said after attending the case management.

Tan added that the court has fixed Jan 6 next year for case management of the suit.

During today’s case management, counsel Norhazira Abu Haiyan appeared for Najib while senior federal counsel Habibah Haron appeared for the government.

On Nov 19, the Federal Court unanimously allowed Pua’s appeal to reinstate the legal action against Najib and the government, ruling that a prime minister and other cabinet members can be sued for misfeasance in public office and that the government can be made vicariously liable for their actions.

In Oct 2017, the Kuala Lumpur High Court allowed the defendants’ application to strike out Pua’s lawsuit, which was initially filed that same year in relation to the 1MDB issue.

The legal action was filed in 2017 during the Najib-led BN administration.

Last year, the Court of Appeal upheld the dismissal of the suit, ruling that Najib as prime minister was not a public officer and as such could not be sued for alleged misfeasance in public office.

Under common law principles, a public officer also includes members of the cabinet and the prime minister while the Federal Constitution stipulates otherwise.

In allowing Pua’s appeal, the Federal Court ruled that the tort of misfeasance in public office was available against Najib as an individual holding public office or as a “public officer”.

It found that the Court of Appeal had erred in ruling that the prime minister, as well as all ministers as members of the administration, were excluded from the definition of "public service" and that the common law definition of the term “public officer” could not override the written law which provided for otherwise.

In upholding the lower court's decision to dismiss the Pua's case, the Court of Appeal had said it was bound by the Federal Court's decision in a similar suit filed by current Prime Minister Dr Mahathir Mohamad against Najib, where it upheld the decisions by two previous courts that Najib was not a public officer.

The apex court also found that provisions within Section 5 of the Government Proceedings Act allowed for claims to be brought against a public officer, including the prime minister.

“... At this juncture, ie before trial, it would appear that Tony Pua’s claim, prima facie, contains the necessary elements to constitute a valid claim. Whether or not he will succeed at trial is a question of evidence.

“... Whether or not Tony Pua will succeed, however, depends on the evidence, as the proviso to the section envisages that the government is not responsible for the acts of such a public officer under certain specific conditions.

“In summary, what this means is that Tony Pua can proceed with his claim against Najib Abdul Razak and the government of Malaysia by way of trial in a civil court,” the summary of the Federal Court ruling read. - Mkini