In landmark judgement, Federal Court rules PM, ministers can be sued for misfeasance in public office

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PUTRAJAYA (Nov 19): In a landmark judgement, the Federal Court ruled that the Prime Minister (PM) and ministers are public officers, which means that they can be sued for misfeasance in public office, and the government can be held vicariously liable for any wrongdoing they committed.

The decision was made by a seven-member bench led by Chief Justice Tan Sri Tengku Maimun Tuan Mat, but it was Federal Court judge Datuk P Nalini who wrote the judgment and read the summary of the unanimous decision.

The bench answered two questions of law posed by Damansara MP Tony Pua, who is appealing a Court of Appeal and High Court decision.

The questions are:

  1. Is the tort of misfeasance in public office available against the then Prime Minister of Malaysia, as an individual holding public office or as a public officer?
  2. Can the government be vicariously liable for the acts of Datuk Seri Najib Razak if the tort is proven against him under the Government Proceedings Act 1956?

Pua had in January 2017 sued the then-PM Najib and the government for misfeasance — which means the wrongful use of lawful authority — in public office over the 1Malaysia Development Bhd fiasco (1MDB).

The DAP national publicity secretary had alleged that Najib had abused his public office and had benefitted from receiving money from 1MDB, which are public funds.

With the decision today, it corrected a decision in Tun Dr Mahathir Mohamad and Khairuddin Abu Hassan's suit against Najib and the government on the same issue where an earlier bench upheld the Court of Appeal and the High Court's decision that ruled the PM and members of the Cabinet are members of administration and not public officers.

Najib is presently facing 25 charges, namely four for abuse of power and 21 for money laundering in relation to 1MDB, as well as separate graft and abuse of power charges in relation to 1MDB's former subsidiary SRC International Sdn Bhd and other 1MDB-related charges.

Why PM and ministers are not just 'members of administration'
On ruling why the PM and ministers should not be defined only as "member[s] of administration" as per the Federal Constitution, Justice Nalini said the reasoning and interpretation of these Articles 132(1) and (3) are untenable as those articles are to be construed purely in the context of, and for the purposes of, the Constitution.

"To that end the definition of 'public service' stipulated there is intended to apply to the Federal Constitution and not to the definition of a public officer under the common law," she explained.

The Federal Court judge said a purposive reading of Article 132 reflects the administrative structure envisaged for the governance and operation of the Federation, and not to determine who can be held liable for misfeasance while holding public office.

"This means that ministers are no less holders of public office in the context of misfeasance in public office. They derive their salary from the public purse and carry out their functions with a public purpose.

"Therefore there was no express legislative intent in either the Federal Constitution or the Interpretation Acts to abrogate the common law definition of the term 'public officer'," she explained further.

Nalini said the Federal Court also accepted the tort of misfeasance in public office in the Keruntum Sdn Bhd vs The Director of Forests case and others, where the Sarawak Chief Minister was treated as a public officer or a person holding public office.

"This fortifies our conclusion that the then-PM is a person holding public office or a public officer for the purposes of misfeasance in public office," the top judge said.

Quoting a foreign judgment, Nalini expressed that the tort of misfeasance in public office is that in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes.

"The tort serves to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity," she said.

She added as the court ruled the PM and ministers are public officer, then the government can be held liable for their acts in public office.

"There is a specific definition of 'officer' in the Government Proceedings Act 1956, which when construed purposively, supports the legal conclusion that the government may be sued for alleged vicarious liability under that section.

"In other words, an action can be brought against the government in respect of the acts of a PM or other minister under misfeasance in public office," Justice Nalini said.

The court further ruled that the suit by Pua can be reinstated if he wishes to continue to do so, but the suit would be decided again after a trial at the High Court.

Besides Justices Tengku Maimun and Nalini, also on the panel were Court of Appeal president Tan Sri Ahmad Ma'arop, Chief Judge of Malaya Tan Sri Azahar Mohamed, and Federal Court judges Justices Rohana Yusof and Datuk Mohd Zawawi Mohd Salleh.

The other Federal Court judge, Justice Datuk Alizatul Khair Osman Khairuddin, has just retired.

Pua was represented by Datuk Malik Imtiaz Sarwar, while senior federal counsel Alice Loke appeared for the government.

Malik, commenting the decision, said this is a good decision that upheld the rule of law.

Najib is asked to pay costs of RM30,000, and the apex court has fixed Nov 26 for mention at the High Court.

The court did not make any order as to costs to be paid by the government.