There has been much interest on the impact of the Federal Court ruling, that agreed with the Court of Appeal and the High Court(I have copied that High Court judgement here for your reading pleasure, highlighting interesting portions of that judgment in red) which seems to be an hurdle in the prosecution of Najib for crimes that he may have committed as Prime Minister or Minister of Finance.
...In his decision Tuesday (Feb 27), Justice Md Raus, who chaired the bench, said the Federal Court agreed with the interpretation made by the High Court and Court of Appeal that Najib was not a public officer. He said the matter involved the interpretation of the Federal Constitution and statutes on the meaning of "public officer"...
My earlier post, which was read by many,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[Gopal Sri Ram] said...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.- FMT, 1/3/2018
Najib - Cannot be charged for crimes as public servant until LAW is changed?
did mention, that one way out would be if this Federal Court judgment was overulled by another Federal Court. And this may happen when Mahathir's application for review comes up for hearing on 6th August....BUT, then the Federal Court may also not overule that decision as the Malaysian judiciary is 'independent' and is not expected to simply bow to the wishes of the Prime Minister or the government of the day.
Just before GE14, Haniff had filed an application to review the ruling by the Federal Court which decided that the prime minister, cabinet ministers, the attorney-general, menteri besar, are not public servants.The Federal Court has fixed August 6 to hear Dr Mahathir’s application.- Malaysian Insight, 16/6/2018
As it was argued in my first post, Najib may still get away for offences he committed as Prime Minister and/or Finance Minister unless this Federal Court decision is overruled...
Malaysia could amend its constitution and/or laws to state that PM, Cabinet Members,...., members of administration are all public servants, public officers, holders of public office...and that new LAW will apply thereafter. Najib will still escape for wrongdoings committed in the past before the new law comes into force...
To give the new law retrospective effect...will certainly be against the Rule of Law ...certainly wrong when it comes to a criminal offence. It will be wrong to charge someone for doing an act which was not a crime when the said act was done...
There are arguements that Najib could be charged for criminal wrongs he did as Prime Minister and/or Finance Minister as that 'not so good' Federal Judgment was only with regards a civil action ...not a criminal action, but seriously I have my doubts ...UNLESS he is charged for doing things not as Prime Minister or Finance Minister...just like a policeman can still be charged for murder if he 'killed' a suspect in custody...
Anyway, we shall see what happens now...
TUN DR MAHATHIR MOHAMAD & ORS v. DATUK SERI MOHD NAJIB TUN HJ ABDUL RAZAK (NO 2)
HIGH COURT MALAYA, KUALA LUMPUR
ABU BAKAR JAIS J
[SUIT NO: WA22NCVC-181-03-2016]
28 APRIL 2017
JUDGMENT
Abu Bakar Jais J:
Introduction
[1] This written judgment relates to the
application of the defendant to strike out the suit filed by the three
plaintiffs pursuant to O. 18 r. 19(1)(a), (b), (c) and (d) of the Rules of Court 2012
("RC").
Background Facts
[2] I had already narrated the material
facts of this case in my written judgment pertaining to an earlier application
by the plaintiffs to cross-examine the defendant as reported in [2016]
7 CLJ 637, [2016] 11 MLJ 1 and [2016] 6 MLRH 159. These facts are still
relevant and are reproduced below.
[3] The first plaintiff is the former
Prime Minister of Malaysia of 22 years. The second and third plaintiffs, like
the first plaintiff are former members of United Malays National Organisation
("UMNO"), the main political party in a coalition forming the present
Government.
[4] The defendant is the current and sixth
Prime Minister of Malaysia. He is also the President of UMNO and Chairman of Barisan
Nasional ("BN"), the coalition.
[5] All three plaintiffs are up in arms
against the defendant for alleged financial improprieties in a company wholly
owned by the Government of Malaysia, 1Malaysia Development Berhad
("1MDB"). From their statement of claim, it is indicative that they
subscribe to this belief because of initial news reports from among others,
Sarawak Report and Wall Street Journal regarding these alleged wrongdoings and
other events happening subsequently to their understanding, lending credence to
that belief.
[6] The defendant is the Chairman of the
Board of Advisors of 1MDB. The allegation among others is that at least the
amounts of RM2.6 billion and RM42 million went into the personal bank accounts
of the defendant from SRC International Sdn Bhd, a subsidiary of 1MDB without
any justification whatsoever.
[7] The former Attorney General of
Malaysia ("AG") subsequently headed a task force investigating the
alleged fund transfer into the personal bank accounts of the defendant. The members
of the task force include the former governor of the central bank, the head of
the police force and head of the Malaysian Anti-Corruption Commission.
[8] Events ensued later with the
termination effectively of the service of the former AG from his post in the
midst of the investigation. In addition, four members of Parliament's Public
Accounts Committee ("PAC") also investigating 1MDB were appointed to
the cabinet, thus disqualifying them as members and affecting tremendously the
said investigation by PAC.
[9] The plaintiffs made the allegation all
these were orchestrated by the defendant as Prime Minister. The defendant is
said to interfere and halt the investigation by using his office and power as
the Prime Minister.
[10] The statement of claim of the
plaintiffs also makes allegation that the Government machinery was used to
harass and intimidate those who are critical of 1MDB and the defendant. These
include taking actions against news agencies such as the Edge Media Group for
allegations of inaccurate reports pertaining to 1MDB. It is also alleged that
members of the opposition critical of the defendant and 1MDB had been banned
for overseas travel without reasons. Further, the then Deputy Prime Minister,
Tan Sri Muhyiddin Hj Mohd Yassin ("TS Muhyiddin") who had allegedly
demanded the defendant to come clean on 1MDB was also removed from his post.
Also dismissed was the Minister of Rural and Regional Development, Dato Seri
Haji Mohd Shafie bin Haji Apdal ("DS Mohd Shafie") who publicly
called on the defendant to explain the purported financial scandal of 1MDB. All
these are alleged by the plaintiffs to be attributable to the defendant as
Prime Minister.
[11] The statement of claim of the
plaintiffs asserts that all three have the right to bring action against the
defendant based on the tort of misfeasance in public office and/or tort of breach
of fiduciaries in public office. In fact, the plaintiffs state that they are
bringing this action against the defendant in his personal capacity for
committing both torts.
[12] The prayers sought by the plaintiffs
from this court include a declaration that the defendant committed the tort of
misfeasance in public office and/or tort of breach of fiduciaries in public
office because of the interference and obstruction in the investigations
pertaining to 1MDB and other related companies. Also sought is that the
defendant pays the amount RM2.6 billion as exemplary damages and the amount
RM42 million as aggravated damages to the Government of Malaysia.
The Defendant's Submissions
[13] In gist, the arguments of the
defendant supporting his application for striking out are as follows.
[14] The first point contended by the
defendant is that the plaintiffs' claim is devoid of particulars pertaining to
the instructions allegedly given by the former to the Government machinery
including Government Ministries and enforcement agencies pertaining to the
allegation of conspiracy on the part of the defendant.
[15] The second argument of the defendant
is that there is no reasonable cause of action, scandalous, frivolous and an
abuse of the process of the court for the plaintiffs to allege against the
defendant the tort of misfeasance in public office.
[16] For this tort, the defendant also
contended that the plaintiffs failed to fulfil the ingredients of the tort. The
perusal of the statement of claim of the plaintiffs according to the defendant
showed that all the ingredients for the tort of misfeasance in public office
has not and cannot be satisfied.
[17] The defendant in this regard
submitted that the plaintiffs must prove that the offices of the Prime Minister
and Minister of Finance of Malaysia in which the defendant also occupies,
Chairman of BN or President of UMNO are all public offices in proving this
tort. Consequently, the plaintiffs need to prove that the defendant must be a
public officer before the tort of misfeasance in public office can be
established. In this regard, the defendant maintained that he is not a public
officer and therefore cannot be liable for the tort of misfeasance in public
office.
[18] The defendant also argued that there
is no pleaded loss by the plaintiffs. Not only there is no pleaded loss by the
plaintiffs, the plaintiffs also failed to show how the loss to the plaintiffs
was caused by the defendant exercising his power as a public officer.
[19] The defendant further contended that
the act of the public officer must fall either in the targeted malice limb of
misfeasance where he acts with intent to harm any one or more of the plaintiffs
or the illegality limb of misfeasance where he knows that the act is unlawful
and that it would probably injure the plaintiffs. The defendant submitted there
is no such pleaded acts against the defendant.
[20] The defendant also contended that
there is no fiduciary duty owed by him as the Prime Minister, Minister of
Finance, Chairman of BN and President of UMNO to the plaintiffs. There is no
mutual trust and confidence placed between the parties for a fiduciary
relationship to exist.
[21] Besides, the plaintiffs did not plead
the circumstances upon which this relationship is established. Therefore, the
defendant contended the plaintiffs' action does not disclose a cause of action
and should be struck out.
[22] Also, the defendant submitted that
the plaintiffs' action is filed for a collateral and an ulterior purpose and
this is an abuse of the process of this court. It is founded purely on
political purpose to drive the defendant from the Government.
[23] Further, the defendant argued that
the plaintiffs' action cannot be allowed to stand on general and vague
allegations in the hope that the plaintiffs can reconstitute and make good
their case later. The case of the plaintiffs must be based on facts and not
inferences and the pleading tends to prolong the process of a needless trial.
Plaintiffs' Submissions
[24] In summary, the contentions of the
plaintiffs resisting the defendant's application are narrated below.
[25] Citing the decision of the House of
Lords in Three Rivers District Council And Others v. Bank of England (No 3)
[2003] 3 All ER 1, the plaintiffs are not disputing that the first ingredient
of the tort of misfeasance in public office is that a defendant must be a
public officer. The second ingredient is the exercise of power by a public
officer. The third ingredient concerns the state of mind of the defendant. This
is divided into two. First there is targeted malice by a public officer. Second
is where the public officer acts knowing he has no power to act and the act
will probably injure the plaintiff. These ingredients according to the
plaintiffs are not cast in stone. Hence, the plaintiffs argued that the law for
the tort of misfeasance in public office is still developing.
[26] The plaintiffs also cited the Court
of Appeal's case of LBCN
Development Sdn Bhd & Anor v. Pengarah Tanah dan Galian Selangor & Ors
[2014] 3 CLJ 970 for this tort which essentially reaffirmed the
principles of Three Rivers.
[27] The plaintiffs further contended the
matters for them to prove for this tort of misfeasance in public office are as
follows:
(a) That the defendant is in public office;
(b) That there is a deliberate and dishonest
wrongful abuse of the power by the defendant given to him in his capacity in
the public office;
(c) That such deliberate and dishonest wrongful
abuse of the power was made with bad intention (malice), and in any event,
whether the element of malice is even relevant in the context of the
plaintiffs' pleaded causes of action and
(d) That the plaintiffs or a person in the
plaintiffs' class suffered or would in all likelihood suffer from such
deliberate and dishonest wrongful abuse of power by the defendant.
[28] For the first ingredient, to prove
the defendant is in public office the plaintiffs referred to the affidavit of
the defendant to support the application for striking-out. The plaintiffs
argued in this affidavit it can be seen that the defendant had contradicted
himself. On one hand, he had said he is not a member of the public service or a
public officer but on the other, he did indicate that the plaintiffs are trying
to oust him from public office.
[29] In this regard, the plaintiffs
contended that one fundamental principle on striking out is that it cannot be
based on a minute examination of the documents. Further, when there is a point
of law that requires serious discussion, objection should be taken on the
pleadings and the point set down for argument under O. 33 r. 3 of the RC. The
contradiction involves a question of law as to whether the defendant holds
public office and therefore is a public officer. Since there is contradiction,
this should be decided in a full trial as it cannot be decided by a minute
examination of the defendant's affidavit.
[30] The plaintiffs further contended the
terms "public office", "public officer" and
"Government servant" must be construed on common law principles and
not so much on statutes or constitutional definitions. When there is a conflict
common law should apply.
[31] The acts of the defendant also border
on criminal wrongs despite the plaintiffs' suit presently is civil in nature.
The misuse of power should be taken in context with the criminal breach that is
apparent in the actions of the defendant. The definition of "public servant"
in the Penal Code would mean that the defendant would still be liable for the
tort of misfeasance in public office. Likewise, s. 6(1) of the Members of
Parliament Remuneration Act 1980 ("MPRA") provides for the
remuneration of the defendant by the Legislature, thus the defendant is a
public servant.
[32] The provisions of the Interpretation Acts 1948 and 1967 ("IA") and the Malaysian Anti-Corruption Commission Act 2009 ("MACCA")
would also suggest that the defendant is a public officer. The case of Mohd
Khir Toyo v. PP [2015] 8 CLJ 769 is also an authority that the
defendant should similarly be held to be a public servant.
[33] For the second ingredient, the
plaintiffs further submitted that the pleading of the plaintiffs is clear to
indicate a deliberate and dishonest wrongful abuse of power by the defendant
given to him in his capacity in public office. The pleading must be taken to be
true at least at this stage before full trial. There is also evidence to
suggest after the filing of the suit, the abuse of power by the defendant
including events transpiring in the United States on the issue of the
remittance of the moneys of 1MDB.
[34] In respect of the third ingredient,
the plaintiffs also contended whether the wrongful abuse of power by the
defendant were made with intention (malice) and whether the element of malice
is even relevant to be considered in the context of the plaintiffs' pleaded
case is to be proven during full trial. Before trial, this court should only be
concerned with what is pleaded. And indeed the plaintiffs submitted that they
had pleaded malice and bad intentions repeatedly in the statement of claim.
[35] In respect of the fourth ingredient
pertaining to the plaintiffs or a person in the plaintiffs' class suffering the
abuse, the plaintiffs contended that they had indeed particularised the direct
effect and injury suffered by the them due to the abuse of process by the
defendant. The fact there is injury to the "high principle in public
law" should also be sufficient to denote the satisfaction of this
ingredient. There is no need to show that a third person had actually suffered
the injury because of the abuse.
[36] In respect of the cause of action
that the defendant owes fiduciary duties to the plaintiffs and Malaysians at
large, the plaintiffs argued that this court ought to be the "supreme
policing authority" and that the Federal Constitution forms the basis for
the plaintiffs' cause of action in this regard. It is also argued that the
defendant holds office under the Federal Constitution as a fiduciary to the
Federation for the benefit of all Malaysians including the plaintiffs. In any
event, it is submitted that whether there is a valid cause of action should be
determined after full trial.
[37] The plaintiffs also submitted that
they have the locus standi to sue the defendant. Locus standi is
established when the plaintiffs attempt to uphold the Federal Constitution.
Public interest litigation cannot be denied simply because the plaintiffs do
not have a direct interest in the matter.
Court's Findings
[38] First, it must always be borne in
mind that this is still the basic and normal application to strike out the
plaintiffs' suit. It is after all requested at an early stage. Of course, no
witnesses have been called in view of the present application. However, that in
no way would mean that the application does not deserve its due consideration.
[39] In this regard it is common knowledge
there is a plethora of decided cases on an application for a striking out of an
action. However suffice to note there can be no dispute that all parties should
be guided by the leading case of the Supreme Court in Bandar
Builder Sdn Bhd & Ors v.United Malayan Banking Corporation Bhd [1993] 4 CLJ
7; [1993] 3 MLJ 36 when it comes to an application to strike out an
action. The relevant and oft-quoted words of the decision are as follows:
The principles upon which the court acts in
exercising its power under any of the four limbs of O. 18 r. 19(1) of the RHC are well settled. It is only in
plain and obvious cases that recourse should be had to the summary process
under this rule (per Lindley MR in Hubbuck & Sons Ltd v. Wilkinson,
Heywood & Clark Ltd 7, and this summary procedure can only be adopted
when it can be clearly seen that a claim or answer is on the face of it
'obviously unsustainable' (see AG of Duchy of Lancaster v. L & NW Rly
Co 8). It cannot be exercised by a minute examination of the documents and
facts of the case, in order to see whether the party has a cause of action or a
defence.
...
The court must be satisfied that there is no
reasonable cause of action or that the claims are frivolous or vexatious or
that the defences raised are not arguable.
[40] As seen five crucial factors that are
taken into account in considering whether an action is to be struck out as
stated in the above quotation are as follows:
(a) It must be plain and obvious that a suit can
be struck out;
(b) A claim on the face of it is obviously
unsustainable;
(c) It cannot be exercised by a minute
examination of the documents and facts of the case;
(d) There is no reasonable cause of action and
(e) The claim is frivolous or vexatious.
[41] I shall base my decision for the
present application on the above requirements as after all Bandar Builder
is binding on this court.
[42] Second, it is undisputed by the
plaintiffs themselves and in fact they asserted there are two causes of action
forwarded by them as follows:
(a) Tort of misfeasance in public office by the
defendant; and
(b) Breach of fiduciaries in public office by the
defendant.
[43] Coming back to Bandar Builder,
the first question to ask is whether the plaintiffs' action is plain and
obvious for it to be struck out. I shall approach this issue by alluding
firstly to the first cause of action of the plaintiffs ie, misfeasance in
public office by the defendant and then to the second cause of action ie,
breach of fiduciaries in public office by the defendant.
[44] For the first cause of action,
following Three Rivers District Council, a crucial ingredient for the
tort needed is that the defendant must be proven to be a public officer. This
is undisputed even by the plaintiffs. As stated, the defendant argued that he
is not a public officer. Therefore the defendant contended that the plaintiffs
cannot be allowed to bring the tort of misfeasance in public office against
him.
[45] For this contention, I state the
reliance of the defendant firstly on s. 3IA as follows;
"public office" means an office in any
of the public services.
"public officer" means a person
lawfully holding, acting in or exercising the functions of a public service.
"public services" means the public
services mentioned in Article 132(1) of the Federal Constitution.
"Minister" means, subject to subsection
8(2), a Minister of the Government of Malaysia (including the Prime Minister
and a Deputy Minister)
(emphasis added)
[46] Also s.
8(2) of the IA states:
A reference to "the Minister" is a
reference to the Minister for the time being responsible for the matter in
connection with which the reference is made.
[47] In turn art. 132(1) of the Federal Constitution states;
For the purposes of this Constitution, the public
services are-
(a) the armed forces;
(b) the judicial and legal service;
(c) the general public service of the Federation;
(d) the police force;
(e) (Repealed);
(f) the joint public services mentioned in Article
133;
(g) the public service of each State; and
(h) the education service.
[48] And art. 132(3) of the Federal Constitution states;
The public service shall not be taken to
comprise:
(a) the office of any member of the
administration in the Federation or a State; or
(b) the office of President, Speaker, Deputy
President, Deputy Speaker or member of either House of Parliament or of the
Legislative Assembly of a State; or
(c) the office of judge of the Federal Court, the
Court of Appeal or a High Court; or
(d) the office of member of any Commission or
Council established by this Constitution or any corresponding Commission or
Council established by the Constitution of a State; or
(e) such diplomatic posts as the Yang di-Pertuan
Agong may by order prescribe, being post which but for the order would be posts
in the general public service of the Federation.
[49] Also art. 160(2) of the Federal Constitution states;
In this Constitution, unless the context
otherwise requires, the following expressions have the meanings hereby
respectively assigned to them, that is to say:
"Member of the administration" means,
in relation to the Federation, a person holding office as Minister, Deputy
Minister, Parliamentary Secretary or Political Secretary and, in relation to a
State, a person holding a corresponding office in the State or holding office
as member (other than an official member) of the Executive Council.
[50] First, the terms "public
office" and "public officer" are defined as shown above in s.
3IA. Both these terms are important because the two causes of action brought by
the plaintiffs involved proving these terms. The terms need to be proven to
show that indeed the defendant firstly is a public officer and secondly he is
in public office. Coming back to the definitions, as stated the common
denominator in respect of both is "public service(s)" (See the
definitions in s. 3 of the IA shown above). Therefore, it must be shown
and proven that the defendant must be a member of the public service. For this,
as shown also by the same provision of the IA "public services" are
limited to the services stated only in art. 132(1) of the Federal Constitution. This
provision of the Federal Constitution is also shown above. Clearly, the
defendant is not a member of any of the services listed under this provision of
the Federal Constitution. To reinforce this finding, one only need to look at art. 132(3) of the Federal Constitution, which is
also shown above. This provision lists down the offices that are to be excluded
as public services. One of which is the office of any member of the
administration in the Federation or a State. And who is the member of administration? It includes the defendant
by virtue of art. 160(2) of the Federal Constitution, which is
also narrated above for being a Minister. And a Minister includes Prime
Minister as seen in the definition of "Minister" in s. 3 of the IA shown above.
[51] These provisions cumulatively will
indicate that the defendant is not a public officer and does not hold public
office. It may be most surprising and quite unpalatable to swallow for many on
the streets that the defendant in his capacity as Prime Minister or Minister of
Finance is not a public officer in public office. But the provisions
highlighted clearly indicate our Legislature in their wisdom had thought it fit
and proper not to categorise the defendant as a public officer. It is most
cliché to stress a court should decide a case based only on the law applicable
no matter how unpopular the judge might become because of the decision. And in
this regard it is trite that a court of law should not usurp the function of
the Legislature by imposing its own words or ingeniously interpreting and
stretching the clear words of the provisions to say the defendant is a public
officer in public office instead. This proposition is explained by the Federal
Court in the case of Loh
Kooi Choon v. Government of Malaysia [1975] 1 LNS 90; [1977] 2 MLJ 187
as follows:
It is clear that the question at issue is fraught
with political controversy. No doubt the appellant and other persons hold
strong views one way or the other on the justice of the impugned Act. I should
add that right now no feature of our system of government has caused so much
discussion, received so much criticism, and been so frequently misunderstood,
than the duties assigned to the courts and the functions which they discharge
in guarding the Constitution. For that reason and also because it is rarely
that this court is faced with a constitutional question of this kind it is
desirable at the outset to make clear the functions of the courts.
The question whether the impugned Act is
"harsh and unjust" is a question of policy to be debated and decided
by Parliament, and therefore not meet for judicial determination. To sustain it
would cut very deeply into the very being of Parliament. Our courts ought not
to enter this political thicket, even in such a worthwhile cause as the
fundamental rights guaranteed by the Constitution, for as was said by Lord
Macnaghten in Vacher & Sons Ltd v. London Society of Compositors
[1913] AC 107 118:
Some people may think the policy of the Act
unwise and even dangerous to the community. Some may think it at variance with
principles which have long been held sacred. But a judicial tribunal has
nothing to do with the policy of any Act which it may be called upon to
interpret. That may be a matter for private judgment. The duty of the court,
and its only duty, is to expound the language of the Act in accordance with the
settled rules of construction. It is, I apprehend, as unwise as it is
unprofitable to cavil at the policy of an Act of Parliament, or to pass a
covert censure on the Legislature.
It is the province of the courts to expound the
law and "the law must be taken to be as laid down by the courts, however
much their decisions may be criticised by writers of such great
distinction" - per Roskill L.J. in Henry v. Geopresco International Ltd
[1975] 2 All ER 702 718. Those who find fault with the wisdom or expediency of
the impugned Act, and with vexatious interference of fundamental rights,
normally must address themselves to the legislature, and not the courts; they
have their remedy at the ballot box.
The Constitution is not a mere collection of
pious platitudes. It is the supreme law of the land embodying 3 basic concepts:
One of them is that the individual has certain fundamental rights upon which
not even the power of the State may encroach. The second is the distribution of
sovereign power between the States and the Federation, that the 13 States shall
exercise sovereign power in local matters and the nation in matters affecting
the country at large. The third is that no single man or body shall exercise
complete sovereign power, but that it shall be distributed among the Executive,
Legislative and Judicial branches of government, compendiously expressed in
modem terms that we are a government of laws, not of men.
[52] The issue whether the defendant is a
public officer would not be sufficiently addressed if I do not allude to the
contentions of the plaintiffs in greater detail in respect of the same. I
therefore do so in the ensuing paragraphs.
[53] First is the contention that the
defendant had contradicted himself in this regard in his own affidavit, initially
by saying he is not a public officer but in the same affidavit asserting that
the plaintiffs are trying to drive him from public office. I accept there is a
contradiction on the part of the defendant under the circumstance. But what is
the real effect of this contradiction? Can this contradiction be taken to mean
that the defendant is a public officer? I am not prepared to rule so because of
the clear provisions of the IA and the Federal Constitution, which have been
alluded earlier. This contradiction at best shows the confusion of the
defendant himself in respect of the office and position he hold. But it can
never mean that the defendant is a public officer in light of the provisions
explained. The confusion of the defendant and the wrong choice of words he had
used cannot override nor displace the clear words of the IA and Federal
Constitution as pointed out. Further, it is for the court through no concession
or mistake by the parties to determine whether the defendant is a public
officer guided by the statutory provisions available. In this regard it is
appropriate to take note of the decision in Bahamas International Trust Co
Ltd v. Threadgold [1974] 1 WLR 514 where it is said:
In a case which turns, as this one does, on the
construction to be given to a written documents' a court called on to construe
the document in the absence of any claim to rectification, cannot be bound by
any concession made by any of the parties as to what its language means. That
is so even in the court to which an appeal from the judgment of the court is
brought. The reason is that the construction of a written document is a
question of law. It is for the judge to decide himself what the law is, not to
accept it from any or even all the parties to the suit; having so decided it is
his duty to apply it to the facts of the case. He would be acting contrary to
his judicial oath if he were to determine the case by applying what the parties
conceived to be the law, if in his own opinion it were erroneous.
(emphasis added)
[54] The above decision is already adopted
by our Court of Appeal in Silver
Concept Sdn Bhd v. Brisdale Rasa Development Sdn Bhd [2005] 3 CLJ 259;
[2005] 4 MLJ 101.
[55] The plaintiffs also argued that the
contradiction would mean that the issue whether the defendant is a public
officer ought to be litigated in a full trial as it is a fundamental principle
that for a striking out, there cannot be a minute examination of the documents.
Here, the plaintiffs basically suggested there cannot be a minute examination
of the contradiction as contained in the defendant's affidavit. On this,
respectfully I would say there is no need to minutely examine that affidavit in
respect of the contradiction as the question whether the defendant is a public
officer can categorically be answered by looking at the provisions of the IA
and Federal Constitution as already highlighted and not belabour on the
contradiction in the affidavit. Neither would the argument of the plaintiffs be
applicable in this respect if it was to be contended there should not be a
minute examination of the statement of claim or defence. Either in respect of the
affidavit or pleadings, there is no need to minutely examine both in
determining whether the defendant is a public officer in public office.
[56] The plaintiffs then cited the case of
MBf
Capital Bhd & Anor v. Dato' Param Cumaraswamy [1997] 3 CLJ 927;
[1997] 3 MLJ 300 to argue that in this case of defamation, a striking out was
refused because whether the defendant in this case enjoyed immunity from legal
process as United Nations Special Rapporteur can only be answered in a full
trial. That may be so in the finding of the court in that case because
obviously the court in that case had no benefit of clear statutory provisions
as in the IA and Federal Constitution as explained for the present case before
this court now. In short, each case has its own peculiar facts, so much so no
two cases can be decided similarly without first appreciating its different facts.
[57] The plaintiffs went on to say that
the facts and principle of MBf Capital Berhad are similar with the
present case as it would also be too elusive an inquiry to determine whether
the defendant is a public officer without a full trial. I respectfully do not
agree these two cases have similar relevant facts. It maybe too elusive an
inquiry to determine whether the defendant was protected with immunity without
full trial in MBf Capital Berhad. However, because of the clear
provisions of the IA and Federal Constitution as explained, it is never an
elusive inquiry to determine whether the defendant in the present case is a
public officer without full trial. Even without full trial, the provisions of
the IA and Federal Constitution are quite clear in determining whether the
defendant is a public officer in public office.
[58] On a slightly different note from the
above arguments pertaining to the contradiction of the defendant, the plaintiff
also contended that since common law is being relied for this tort, the
definitions of "public officer", "public office" and
"Government servant" should be understood in the context of common
law principles while statutory or constitutional definition should take
secondary role being persuasive at best. With respect, I find this contention
disturbing to say the least. The effect of this submission in essence is to
suggest that this court should discard or the very least close one eye so to
speak to allow common law interpretations instead of applying the clear
provisions of the IA and Federal Constitution to determine whether the
defendant is a public officer. I see no reason to do that because we have our
own legislation over and above the English common law.
[59] The plaintiffs next contention in
respect of the issue whether the defendant is a public officer involves the
definition of "public servant" pursuant to s. 21(i) of the Penal Code where it
states that "public servant" denotes "... every officer in the
service or pay of Government or remunerated by fees or commission for the
performance of any public duty". In this regard the plaintiffs submitted
than since the remuneration of the defendant as Prime Minister is provided by
the Legislature pursuant to s. 6(1)(a) of the MPRA,
the defendant is a public servant. The plaintiffs further argued this is
consistent with the definition of "public officer" under s. 66 of the IA which provides that "public
officer" means a person in the permanent or temporary employment of any
Government in the Federation and s. 3 of the MACCA that defines "officer of a
public body" as to mean, inter alia, "any person receiving any
remuneration from public funds". The plaintiffs supported these
submissions with the case of the Federal Court in Mohd Khir Toyo where
the accused in that case in his capacity as Chief Minister of Selangor and
Chairman of Perbandanan Negeri Selangor was held to be a public servant. First,
respectfully the plaintiffs with these submissions diverted the issue of
whether the defendant is a "public officer" into whether the same is
a "public servant". I take it that this is done because of the
cumulative readings of the provisions of the IA and the Federal Constitution as
explained clearly denote that the defendant is not a "public
officer". The difference between the two posts seems semantic in nature.
Though it may appear semantic, a major part of the duties of a court of law
among others is precisely to interpret the differences and nuances of words.
The defendant must also not be deprived of the right to consider himself not a
public officer in his capacity as Prime Minister and Minister of Finance
because of the provisions of IA and Federal Constitution as earlier explained.
Further, the plaintiffs themselves do not dispute that the defendant must be
proven to be a public officer in public office. Therefore, it is not a question
of being a public servant but a question of being a public officer. Besides the
case Mohd Khir Toyo did not in its entirety discuss the question whether
the accused in that case was a "public officer". Instead, it
discussed whether the accused was a "public servant". The plaintiffs
also quoted s. 66 of the IA and s. 3 of MACCA in isolation without taking note of the
provisions of the Federal Constitution as explained especially when there is no
dispute that the latter is the Supreme law of the land.
[60] Further, it cannot be seriously
argued by the plaintiffs that the defendant is a public officer as Chairman of
BN and President of UMNO. Having leadership positions in these two political
bodies certainly cannot mean the defendant is a public officer nor does anyone
in these bodies as ordinary members.
[61] The explanation on the finding that
has been made above in respect of the first necessary ingredient for the tort
of misfeasance in public office, is sufficient to determine whether the case of
the plaintiffs in respect of their first cause of action is plain and obvious
to be struck out. Since the plaintiffs themselves conceded that the first
ingredient they need to prove is that the defendant is a public officer and
since this was not proven as explained, it follows that this cause of action is
plain and obvious for a striking out. A full trial is unnecessary as even if
the case proceeded for full hearing, the fact remains this crucial ingredient
will not be proven by the plaintiffs having regard to the provisions of the IA
and Federal Constitution as explained and alluded earlier.
[62] The finding above on the first
ingredient for the tort of misfeasance in public office, makes it also
unnecessary and pointless to discuss and determine whether there is sufficient
basis to also rule on the other ingredients for this tort. Whether the
plaintiffs have the possibility to prove the other ingredients of the same tort
if a full trial is allowed becomes academic since the defendant cannot in the
first place be proven to be a public officer in public office. It also means
the other issues raised by the defendant in challenging the pleading of the
plaintiffs especially in the need of particularisation of the allegations become
equally unnecessary to decide.
[63] I shall now consider whether it is
plain and obvious that the second cause of action brought by the plaintiffs
should also be struck out. Is there sufficient basis to say that the cause of
action of breach of fiduciaries in public office by the defendant should also
be determined similarly and suffer the same fate as the first cause of action
brought by the plaintiffs in respect of the striking out?
[64] First in respect of this cause of
action, broadly the grounds for striking out by the defendant are as follows:
(a) This is not a proper cause of action and
(b) Plaintiffs have no legal standing to bring
this particular claim.
[65] In respect of the first ground above,
the argument of the defendant extended beyond the issue of whether the
defendant in the first place is in public office. However, I am of the view the
core issue whether the defendant is in public office is still material for this
cause of action as the basis for the suit is "breach of fiduciaries in public
office". By the name of the cause of action itself, the element of
"public office" is crucial to be proven. And as explained, the
defendant is not in public office bearing in mind the relevant provisions of
the IA and Federal Constitution. Therefore, in failing to show that the
defendant is in public office alone, means this cause of action cannot be
proven against the defendant. This is indicative enough to say that the
plaintiffs' case is plain and obvious to be struck out even without considering
whether this is not a proper cause of action in a broader sense as argued by
the defendant and whether the plaintiffs have no legal standing to bring this
particular claim. It is an exercise in futility to determine these two points
of contention by the defendant when the very essence of this cause of action
that the defendant is in public office cannot be proven by the plaintiffs.
[66] The plaintiffs also relied on the
decision by the Caribbean Court of Justice in Florencio Marin and Jose Coye
v. Attorney General of Belize [2011] CCJ 9 (AJ) to say under common law a
Minister serving in a ministerial office is indeed in public office. With
regard to this contention, clearly with respect the plaintiffs failed to
appreciate, in this case there is no definition of the word "public
office" as in our IA which has been highlighted. The word "public
office" in the IA has also been elaborated in the context of our own
Federal Constitution as explained. The above case cannot be applied and
followed as the finding in that case in respect of "public office"
flies in the face of the provisions of our IA and Federal Constitution as
narrated. In the context of proving this cause of action, it again ought to be
reminded, when the law is clear in our own jurisdiction as reflected in the
provisions of the IA and Federal Constitution, it is difficult to fathom why
must foreign law be imported to interpret the relevant terms and in the process
displacing our own law.
[67] Both parties had also addressed this
court on the applicability of s.
3(1) of the Civil Law Act 1956 ("CLA") in relation to the two
causes of action as basis for the plaintiffs' suit. The provision states:
Save so far as other provision has been made or
may hereafter be made by any written law in force in Malaysia, the Court shall:
(a) In Peninsular Malaysia or any part thereof,
apply the common law of England and the rules of equity as administered in
England on the 7 April 1956;
(b) In Sabah, apply the common law of England and
the rules of equity, together with statutes of general application, as
administered or in force in England on 1 December 1951;
(c) In Sarawak, apply the common law of England
and the rules of equity, together with statutes of general application, as
administered or in force in England on 12 December 1949, subject however to
subparagraph (3)(ii):
Provided always that the said common law, rules
of equity and statutes of general application shall be applied so far only as
the circumstances of the States of Malaysia and their respective inhabitants
permit and subject to such qualifications as local circumstances render
necessary.
[68] Having had the benefit of the
submissions of both sides, I am of the view that this provision reinforced the
application of the relevant provisions of the IA and Federal Constitution as
opposed to common law in finding the defendant is not a public officer and not
in public office. This is so having regard to the opening words of s.
3(1) of the CLA that states:
Save so far as other provision has been made or
may hereafter be made by any written law in force in Malaysia, the court
shall...
[69] The qualification imposed on the
applicability of common law by the above opening words indicates the same would
not be applicable when there is already provisions made in respect of a
particular matter. Likewise, in this case, since there are already provisions
in the IA and Federal Constitution as explained, common law should not be
applicable in interpreting the terms "public officer" and
"public office".
Conclusion
[70] The two important elements of the
defendant being a "public officer" and in "public office"
for both causes of action as basis for their suit cannot be proven by the
plaintiffs. Our own legislative provisions must come as first preference in
interpreting whether the defendant is a public officer in public office. It
cannot come secondary after the common law, even though arguments may be
forwarded that the common law is to elaborate and clarify the applicability of
the legislative provisions. Or even to the extent that common law should be
applied above the legislative provisions. There is no need for such elaboration
and clarification or preference for common law, when as shown the provisions of
the IA and the Federal Constitution are crystal clear.
[71] Therefore, Bandar Builder 's
five factors as narrated are satisfied for the striking out be it cumulatively
or separately. The important elements of "public officer" and
"public office" not being satisfied by the plaintiffs for their
action, means their claim is plain and obvious to be struck out. On the face of
it, the same is also obviously unsustainable. Further, there is no need for a
minute examination of the documents and facts of the case to strike out the
plaintiffs' action as it is basic and fundamental for the two elements of
"public officer" and "public office" be shown to apply in
respect of the defendant. Therefore, for the suit brought by the plaintiffs,
there is actually no reasonable cause of action and as a whole, on the facts
and laws explained, the claim of the plaintiffs is frivolous and vexatious. For
the last two of these factors of Bandar Builder, it may seem strange
that there is no reasonable cause of action and the claim is frivolous and
vexatious. However, if one bears in mind the fact that the two important
elements for both causes of action are not present, it would not be difficult
to accept that indeed the plaintiffs' claim is without reasonable cause of
action and is frivolous and vexatious.
[72]
There may be strong reasons for the plaintiffs to bring this action against the
defendant. There may also be millions who would support and understand why the
plaintiffs are suing the defendant. But for all and sundry, it is fundamental
to appreciate a suit can only stand based on the law that is applicable. Our
own law as explained, no matter how unreasonable it may be perceived, does not
permit the plaintiffs' suit. The application of the defendant for striking out
of the plaintiffs' action is, therefore, allowed with costs to the former.Dr M, Khairuddin fail to get leave to appeal in suit against PM
Tun Dr Mahathir Mohamad
PUTRAJAYA:
Tun Dr Mahathir Mohamad and Datuk Seri Khairuddin Abu Hassan have
failed to obtain leave to appeal their tort of misfeasance in public
office lawsuit against Prime Minister Datuk Seri Najib Tun
Razak pertaining to 1Malaysia Development Bhd (1MDB).
The 92-year-old former prime minister and the 55-year-old former Batu Kawan Umno vice-chief had sought leave to appeal after their suit against Najib was struck out by the High Court and the subsequent decision upheld by the Court of Appeal.
The three-man Federal Court bench comprising Chief Judge Tun Md Raus Sharif and Federal Court judges Datuk Sri Balia Yusof Wahi and Tan Sri Wira Aziah Ali unanimously dismissed their appeal and ordered them to pay RM20,000 in costs.
"Thus, this is not a fit and proper case for leave to appeal to be granted under Section 96 of the Courts of Judicature Act 1964," he said, adding that the court was of the view that the applicants, Dr Mahathir and Khairuddin, did not fulfil the requirements of Section 96.
Parties in civil cases must first obtain leave before they can pursue their appeal at the Federal Court.
Meanwhile, Justice Md Raus set April 16 to hear lawyer Mohamed Haniff Khatri Abdulla's application to discharge himself from representing former Langkawi Wanita Umno member Anina Saadudin, 43.
Mohamed Haniff had sought to postpone the hearing, saying that he was unable to serve the application (to discharge himself from representing Anina) to her.
Justice Md Raus, however, rejected Mohamed Haniff's application to postpone the hearing and another to recuse him from hearing the matter.
Dr Mahathir, Khairuddin and Anina sued Najib on March 23, 2016, accusing the Prime Minister of committing misfeasance in public office and acting in breach of his fiduciary duty over the management of sovereign investment fund 1MDB.
On April 28 last year, the High Court allowed Najib's application to strike out the suit, ruling that the Prime Minister was not a public officer but a member of the administration.
On Aug 30, last year, the Court of Appeal dismissed the appeal brought by Dr Mahathir, Khairuddin and Anina, prompting them to file an application for leave to appeal to the Federal Court.
During the proceedings, Mohamed Haniff submitted that there were constitutional questions involving the High Court and Court of Appeal's interpretation in applying the Federal Constitution to interpret "public service".
However, Najib's counsel Tan Sri Cecil Abraham submitted that leave to appeal should not be granted because the law was settled on the issues raised by the applicants' counsel.
He added that the applicants' appeal would not have the prospect of success if the court were to grant leave. – Bernama
Razak pertaining to 1Malaysia Development Bhd (1MDB).
The 92-year-old former prime minister and the 55-year-old former Batu Kawan Umno vice-chief had sought leave to appeal after their suit against Najib was struck out by the High Court and the subsequent decision upheld by the Court of Appeal.
The three-man Federal Court bench comprising Chief Judge Tun Md Raus Sharif and Federal Court judges Datuk Sri Balia Yusof Wahi and Tan Sri Wira Aziah Ali unanimously dismissed their appeal and ordered them to pay RM20,000 in costs.
In his decision Tuesday (Feb 27),
Justice Md Raus, who chaired the bench, said the Federal Court agreed
with the interpretation made by the High Court and Court of Appeal that
Najib was not a public officer.
He said the matter involved the interpretation of the Federal Constitution and statutes on the meaning of "public officer".
"Thus, this is not a fit and proper case for leave to appeal to be granted under Section 96 of the Courts of Judicature Act 1964," he said, adding that the court was of the view that the applicants, Dr Mahathir and Khairuddin, did not fulfil the requirements of Section 96.
Parties in civil cases must first obtain leave before they can pursue their appeal at the Federal Court.
Meanwhile, Justice Md Raus set April 16 to hear lawyer Mohamed Haniff Khatri Abdulla's application to discharge himself from representing former Langkawi Wanita Umno member Anina Saadudin, 43.
Mohamed Haniff had sought to postpone the hearing, saying that he was unable to serve the application (to discharge himself from representing Anina) to her.
Justice Md Raus, however, rejected Mohamed Haniff's application to postpone the hearing and another to recuse him from hearing the matter.
Dr Mahathir, Khairuddin and Anina sued Najib on March 23, 2016, accusing the Prime Minister of committing misfeasance in public office and acting in breach of his fiduciary duty over the management of sovereign investment fund 1MDB.
On April 28 last year, the High Court allowed Najib's application to strike out the suit, ruling that the Prime Minister was not a public officer but a member of the administration.
On Aug 30, last year, the Court of Appeal dismissed the appeal brought by Dr Mahathir, Khairuddin and Anina, prompting them to file an application for leave to appeal to the Federal Court.
During the proceedings, Mohamed Haniff submitted that there were constitutional questions involving the High Court and Court of Appeal's interpretation in applying the Federal Constitution to interpret "public service".
However, Najib's counsel Tan Sri Cecil Abraham submitted that leave to appeal should not be granted because the law was settled on the issues raised by the applicants' counsel.
He added that the applicants' appeal would not have the prospect of success if the court were to grant leave. – Bernama
Read more at https://www.thestar.com.my/news/nation/2018/02/27/dr-m-khairuddin-fail-to-get-leave-to-appeal-in-suit-against-pm/#q8Lq8PBlEcH2VpUp.99
Najib may face criminal charges, whether he is ‘public official’ or not
REMEMBER that controversial Federal Court decision in February
which gave Najib Razak a free pass from criminal prosecution after it
ruled that a prime minister was not a public officer?
Well, that ruling may be overturned on August 6 when the apex court
hears an application by Dr Mahathir Mohamad to review that decision.
In any case, Malaysian authorities do not have to wait for that
court decision in August because the MACC Act makes it clear
that criminal charges can be brought against the former prime minister,
said Haniff Khatri Abdulla, lawyer for Dr Mahathir.
In February, a three-man bench led by Chief Justice Raus Sharif
upheld a High Court decision that Najib could not be sued for abusing
his office as prime minister as he was not a public officer.
High Court judge Abu Bakar Jais had allowed Najib to strike out a
suit by Dr Mahathir Mohamad last April, ruling that the terms “public
officer” and “public office” in the Interpretation Act were only
applicable to the class of civil servants as stated under Article 132
(1) of the constitution.
Further, Abu Bakar said Article 132(3) stated that the public service
excluded the office of any member of the administration in the
Federation or state.
Since the Federal Court affirmed the High Court decision, there has
been swirling talk that no criminal charges can be laid against Najib.
"That is wrong. Independent to the court decision, Najib can be charged criminally," said Haniff.
Just before GE14, Haniff had filed an application to review the
ruling by the Federal Court which decided that the prime minister,
cabinet ministers, the attorney-general, menteri besar, are not public
servants.
The Federal Court has fixed August 6 to hear Dr Mahathir’s application.
Tort of misfeasance is a legal action against the holder of a public
office, on allegations that the person has misused or abused his or her
power.
"Independent to this renewed application, which only relates to the
civil tort of misfeasance and any other civil action, Najib would not be
able to escape any criminal action.
"And this is on the basis that he falls under the category of public
servant, defined under the MACC Act, as what had happened to Khir Toyo,"
Haniff said, referring to the former Selangor menteri besar.
The Federal Court convicted Khir in 2015 for committing a crime
within his knowledge as a public servant, which was to obtain for
himself and his wife two plots of land and a bungalow in Shah Alam.
Khir had been charged under Section 165 of the Penal Code for gratification by a public servant. He was sentenced to a year's jail.
Khir had been charged under Section 165 of the Penal Code for gratification by a public servant. He was sentenced to a year's jail.
Haniff said Dr Mahathir's suit against Najib was filed only because
the previous A-G, Apandi Ali, had not pressed criminal charges against
Najib for alleged wrongdoing.
"The Federal Court decision only regards the misfeasance suit. At
that time the A-G was paralysed. He didn't take criminal action.
"So what we did was we filed a suit of misfeasance. So only in civil
tort of misfeasance, the Federal Court decided he's not a public
servant. But that doesn't mean he's not a public servant in criminal
action," Haniff maintained.
Dr Mahathir and two others, including expelled Umno leader Khairuddin
Abu Hassan, took legal action against Najib in March 2016.
In their statement of claim, the group traced the chronology of the
1MDB investigations dating back to March 2015, from the formation of a
special task force, to then A-G 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 the 1MDB scandal.
They wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.
Najib is being investigated for offences under the anti-money
laundering act, over the sum of RM42 million paid by SRC International
into his bank account. – June 16, 201, Malaysian Insight .
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