Tony Pua v Najib: Apex court rules PM can be sued for public office misfeasance

The Federal Court this morning decided that a prime minister and other cabinet ministers can be sued for misfeasance in public office and that the government can be made vicariously liable for their actions.

The unanimous six-member bench decision was delivered by Justice Nallini Pathmanathan in allowing the appeals by Damansara MP Tony Pua in his 2017 tort of misfeasance suit against former prime minister Najib Abdul Razak and the Malaysian government in relation to 1MDB.

The apex court also reinstated the Pua’s civil suit which had been initially struck off by the Kuala Lumpur High Court in Oct 2017.

Today’s decision reversed the controversial High Court decision, subsequently upheld by the Court of Appeal last year, that Najib as a 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.

Today’s decision addressed two legal questions framed by Pua's counsel to the the Federal Court. The questions were:

• Whether the prime minister or any minister is a public officer under Section 5 of the Government Proceedings Act 1956 for the purposes of the tort of misfeasance in public office; and
  
• Whether a court, in determining if the prime minister or any other minister is a public officer for the purposes of the tort of misfeasance in public office, is limited by the definition of "public officer" in Section 3 of the Interpretation Act 1948 (1957) read together with Article 132 and Article 160 of the Federal Constitution.

In its decision today, the court ruled that 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 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's bench today, meanwhile, 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, i.e. 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 case summary read.

According to counsel Malik Imtiaz Sarwar, who represented Pua, the court allowed the appeals with costs of RM30,000 against Najib. No decision on costs was made against the government.

The apex court then set Nov 26 for Pua’s lawsuit to return to the High Court for case management.

The bench comprised Chief Justice Tengku Maimun Tuan Mat, Court of Appeal president Ahmad Maarop, Chief Justice of Malaya Azahar Mohamed as well as judges Rohana Yusof and Zawawi Salleh.

Aside from Malik, lawyers Surendra Ananth and Tan Cheng Leong appeared for the plaintiff while Senior Federal Counsel Alice Loke Yee Ching appeared for the government.

Najib, meanwhile, was today represented by counsels Wan Azmir Wan Majid and Norhazira Abu Haiyan.- Mkini