Charging Najib for wrongs done as PM difficult? Federal Court affirmed High Court Judgment...

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"...

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

My earlier post, which was read by many,

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

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Nation Tuesday, 27 Feb 2018 4:09 PM MYT

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.  

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

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Bede Hong Updated 3 days ago · Published on 16 Jun 2018 7:10AM

Former Prime Minister Najib Razak may find that he does not have a stay-out-of-jail pass, after all. – The Malaysian Insight file pic, June 16, 2018.

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. 

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 .