Monday, May 21, 2018

Najib - Cannot be charged for crimes as public servant until LAW is changed?

Prime Minister Najib, Menteri Besars, Chief Ministers, Members of the Cabinet...may all escape because our Federal Court have made a decision that Najib is a not a 'public officer' - and this means that he may not be made liable for all the crimes now in our Malaysian laws concerning wrongdoings of persons in public office, 'public officers', civil servants(penjawat awam)/public servant, etc... The Federal court decision said that Najib and such persons are all 'members of the administration' who are different...

Now, all courts will be bound to follow that Federal Court decision, until that Federal Court decision is maybe overruled sometime in the future ....THEREFORE, Parliament may have to pass or amend law to make it clear that Prime Ministers, Ministers, AGs and such persons appointed by the King and/or Rulers including MPs, Senators and ADUNs are all public servants ...

...Federal Court ruling that Prime Minister Najib Razak is not a public officer, and therefore, is immune from a suit over alleged misfeasance in public office. The former prime minister's appeal for leave was dismissed this morning by a three-man bench chaired by Chief Justice Md Raus Sharif, who affirmed the decisions of the Court of Appeal and high court.
REMEMBER that in Malaysia, we have a lot of offences with reference to (or specific to) public officers...See for example some of these offences in the Penal Code.


119 A public servant concealing a design to commit an offence which it is his duty to prevent
128 Public servant framing an incorrect document with intent to cause injury

161  Public servant taking a gratification, other than legal remuneration, in respect of an official act 
162  Taking a gratification in order, by corrupt or illegal means, to influence a public servant 
163  Taking a gratification, for the exercise of personal influence with a public servant
164  Punishment for abetment by public servant of the offences above defined
165  Public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant
166  Public servant disobeying a direction of the law, with intent to cause injury to any person
167  Public servant framing an incorrect document with intent to cause injury
168  Public servant unlawfully engaging in trade
169  Public servant unlawfully buying or bidding for property

Now, the Federal Court decision was with regard a civil action - but, still it still may apply to also criminal charges.. and as such Najib may also not be able to be charged, tried and convicted successfully for any such offences by a Public servant(or a public officer or a person holding public office).

Neither can Najib now be sued in the civil courts for nonfeasance, misfeasance and malfeasance done when he was holding public office or by virtue of being a public officer or a public servant.
  • Nonfeasance is the failure to act where action is required — willfully or in neglect.
  • Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
  • Malfeasance is the willful and intentional action that injures a party.
Therefore, Parliament need to clarify the law NOW - through an amendment or a new law, indicating most clearly that Najib, Prime Ministers, Members of the Cabinet, Attorney General, etc are all public officers, persons holding public office, public or civil servants.

If not, the law will be as what the Federal Court judgment says, which, in my opinion, was wrong. We can wait for another Federal Court decision to overrule the current Federal Court decision - but that may take too long, and until then all Courts will have to follow the Federal Court decision.

So, this is a priority for PM Mahathir and the new Pakatan Harapan government. A failure to do so will indicate that this Pakatan Harapan government is also happy with the current situation created by Federal Court in early 2018 - for it considers the PM (and maybe also Menteri Besars and Chief Ministers, Cabinet members...) all not 'public servants'...not persons holding public office...and such they save themselves from crimes concerning wrong doings of public servants, etc ...and even civil suits for their failures in government...Because, now they are 'members of the administration.

So what could be done:-

1)   Maybe relevant Acts could be amended now - to clarify the meaning of public servants, holders of public office, etc {but would that still allow Najib, and the UMNO-BN 'members of administration' to escape?

2)   Enactment of new LAW - to deal specifically with crimes of these 'members of administration'??

3)    Maybe, the problematic or 'regressive' Federal Court judgment could be reviewed?

4)    OR maybe, another case could be filed to settle this issue of whether 'members of the administration' are public officers and/or are persons holding public office? When it reaches the Federal Court, we could get a decision that overturns the previous 'regressive' judgment.[But then Najib has in place a Chief Justice and President of the Court of Appeal, who is still there past their retirement age - on contract for 3 years and 2 years respectively, and mind you this Chief Justice(Raus) was on the bench of the Federal Court that gave that 'bad' decision]

5)   Of course, the Federal Constitution may also have to be amended to clarify matters - but a Constitutional Amendment requires a two third majority of the members of Parliament present and voting, unlike most other laws that only require a simple majority. 


NAJIB, in his time as Prime Minister, has put many hurdles that will prevent Justice...

Dr Mahathir upset at Federal Court ruling that Najib not a public officer

Bede Hong

Dr Mahathir upset at Federal Court ruling that Najib not a public officer
Dr Mahathir Mohamad seen at the Kuala Lumpur High Court today. He says Najib Razak is a public officer, because if this was not so, the prime minister would not be where he is today. – The Malaysian Insight pic by Seth Akmal, February 27, 2018.

DR Mahathir Mohamad has expressed disappointment over today's Federal Court ruling that Prime Minister Najib Razak is not a public officer, and therefore, is immune from a suit over alleged misfeasance in public office.

The former prime minister's appeal for leave was dismissed this morning by a three-man bench chaired by Chief Justice Md Raus Sharif, who affirmed the decisions of the Court of Appeal and high court.

"I don't understand (the decision). He is a public officer, otherwise, he wouldn't be where he is because whatever he does involves the government and involves the public.

"I'm very upset at the decision,” Dr Mahathir told reporters at the Kuala Lumpur High Court.

To a question, Dr Mahathir responded: "Who is the judge? I have my doubts about the legality of his position. I feel he should not listen to this case."

Dr Mahathir had earlier applied for Raus to recuse himself from the case, as the Pakatan Harapan chairman had filed for a judicial review in September last year, challenging the constitutionality of Raus' appointment as chief justice.

Today, Raus ruled that Dr Mahathir's appeal did not have merit and failed to meet the requirements set by Section 96 of the Courts of the Judicature Act.

Dr Mahathir and former Batu Kawan Umno division leader Khairuddin Abu Hassan had filed the suit in March 2016, seeking a declaration that Najib had committed the tort of misfeasance, or wrongful exercise of lawful authority, as well as a breach of fiduciary duty in public office.

Dr Mahathir also commented on DAP leader Tony Pua's failed interim injunction appeal on February 14, when the Court of Appeal took judicial notice that Najib did not commit any wrongdoing with regard to the 1Malaysia Development Bhd scandal.

Justice Yaacob Md Sam said the prime minister had been cleared by the Public Accounts Committee (PAC), attorney-general, police, Malaysian Anti-Corruption Commission and Bank Negara Malaysia.

"The evidence regarding 1MDB has not been shown to the courts and the public," Dr Mahathir told reporters today.

"The public wants to know. There are three reports against Najib on 1MDB, by Bank Negara, MACC and also PAC.

"Why are these reports hidden? Criminal action by any government officer does not constitute an official secret. Official secrets are not about criminal acts.

"So, it is wrong to put these three reports under the Official Secrets Act. It's a case of hiding, and if you hide evidence of a crime, you are committing a crime.”

Dr Mahathir's lawyer, Haniff Khatri Abdulla, said an application for a review of today's Federal Court decision would be filed soon.

"In the application of leave, we just have to show there's a constitutional issue. Whether there's a legal issue for the Federal Court to determine an order for us to get leave, that's to be determined at the appeal stage.

"You're not supposed to decide now. I would say the Federal Court has failed to apply the correct principles in determining whether leave is to be granted or not.”

Dr Mahathir and Khairuddin were ordered by Raus to pay RM20,000 in costs to Najib. – February 27, 2018. - The Malaysian Insight, 27/2/2018

Ex-judge: PM not public officer is a regressive ruling

 | March 1, 2018
We must now await a future Malaysian court to make the correction, says Gopal Sri Ram.

PETALING JAYA: Tuesday’s ruling by the Federal Court that Prime Minister Najib Razak is not a public officer has given him and his ministers a “blank cheque to abuse their powers”, a retired judge said.

Gopal Sri Ram said both academics and practitioners would regard this as a retrogressive decision and claimed Malaysia was probably the only Commonwealth country which had stood the law on its head.

“We must now await a future Malaysian court to make the correction,” he told FMT in response to the apex 
court’s decision, which affirmed that Najib is immune from a lawsuit for alleged misfeasance in public office as he is not a public officer.

The judgment by the three-man bench chaired by Chief Justice Raus Sharif had endorsed the previous decisions by the Court of Appeal and the High Court.

“We agree with their interpretation. Moreover, the applicants did not meet the threshold of Section 96 of the Courts of the Judicature Act,” he said in dismissing the leave to appeal application by former Umno members Dr Mahathir Mohamad and Khairuddin Abu Hassan.

Sri Ram, who retired as Federal Court judge, said the tort of misfeasance in public office is an ancient and well-established tort.

“Lord Diplock in Dunlop v Woolhara said it was a well-established tort. One of the elements of the tort is that the defendant must be a public officer.

“For the purposes of the tort, a public officer is one who receives a salary from the public coffers. He may or may not be a member of the administration for the purpose of the Federal Constitution. That is irrelevant,” Sri Ram said.

He added the leading case on the tort is Three Rivers v Bank of England, which has been applied by Malaysian courts.

“Also by reason of the Civil Law Act, the tort and its common law elements are part of our law. It is therefore not correct to say that the prime minister is not a public officer for the purposes of the tort,” Sri Ram said.

He said the effect of this latest decision is that no minister in Malaysia may be sued in the tort of misfeasance in public office.

High Court ruling

On April 28 last year, High Court judge Abu Bakar Jais, in allowing Najib to strike out a suit by Mahathir, Khairuddin and Anina Saadudin, said the prime minister could not be sued for abuse of power in office as he was not a public official.

In his 31-page ruling, Bakar said the terms “public officer” and “public office” in the Interpretation Act were only applicable to civil servants as stated under Article 132 (1) of the Federal constitution.

“Clearly the defendant (Najib) is not a member of any services listed in the constitution,” he said.

Further, he said, Article 132(3)(a) stated that the public service excluded the office of any member of the administration in the federation or state.

Bakar said Article 160 (2) then stated that a member of the administration in Putrajaya was meant to be a person holding the office of minister (which includes prime minister), deputy minister or parliamentary secretary and political secretary.

At the state level, it includes the menteri besar or chief minister and their state executive council members.

On Aug 30 last year, the Court of Appeal affirmed the findings of the High Court.

In their statement of claim filed in March 2016, Mahathir, Khairuddin and Anina said they were among the rightful parties to take action against Najib.

They traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then attorney-general Abdul Gani Patail’s sudden resignation, and the sacking of former deputy prime minister Muhyiddin Yassin.

They said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued from carrying out and concluding the investigations into his alleged misconduct over the RM2.6 billion donation and RM42 million from SRC International.

The plaintiffs wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.

They also wanted Najib to return to the government the money found in his private bank accounts.

However, Najib filed the action to strike out the suit on grounds that it was unsustainable, frivolous and vexatious. - FMT, 1/3/2018


... ... ... ... ... ... nik elin said...

In order to pass laws, it needs to also go through Dewan Negara. Guess how many senators are from BN? 43.

Would it be smooth sailing?

New Citizen. said...

This is injustice. Truly heartbreaking.