Prime Minister Najib Abdul Razak is not a public officer or part of Malaysia’s public services as he is a member of the administration, his lawyers told the Kuala Lumpur High Court today.
The lawyers are applying to strike out a suit of misfeasance in public office and breach of fiduciary duty by former premier Dr Mahathir Mohamad and two others against Najib in relation to 1MDB and his other actions.
The prime minister’s lead counsel Cecil Abraham told this to Justice Abu Bakar Jais in chambers and cited Article 160(2) of the Federal Constitution which stated that a member of the administration as defined under the Section 3 of the Interpretation Act is a person holding office as minister, deputy minister, parliamentary secretary or political secretary.
“This includes the prime minister and deputy prime minister who as ministers are considered members of the administration and not public officers,” said lawyer Mohd Hafarizam Harun, who is also acting for Najib.
In contrast, Article 132(1) of the Federal Constitution, Hafarizam said, defined public services as the armed forces, judicial and legal service, general public service of the federation, the police force, the public service of each state, the education service along with joint public services mentioned in Article 133.
Hafarizam said Cecil pointed out that Article 132(3) of the Federal Constitution meanwhile stated that public service shall not be taken to comprise any member of the administration of the federation or any state.
“Following this, the suit filed by Mahathir for misfeasance in public office has not been fulfilled and not justified,” he added.
Hafarizam said public office as defined under the Interpretation Act, is an office in any of the public services, while public officer is defined as a person lawfully holding, acting in or exercising the functions of a public service.
This is one of three grounds which Najib’s lawyers applied to strike out the suit. The other grounds were that the tort of misfeasance had not been fulfilled and that the three plaintiffs did not provide sufficient particulars of facts on how Najib had allegedly abused his position.
Mahathir, along with former Batu Kawan Umno division leader Khairuddin Abu Hassan and former Wanita Umno member Anina Saadudin, had filed the RM2.642 billion suit on March 23, last year, claiming that Najib acted in bad faith to undermine, or cause to compromise various respective institutions involved in probing the 1MDB scandal.
Conduct affects public
In his reply, lawyer Mohamed Haniff Khatri Abdulla who was acting for Mahathir, Khairuddin and Anina, said it’s not the office which was in question but the nature of the decision made.
“If the decision (affects) the public, that is within the definition of public office.
“It is illogical that the law allows a person to sue a civil servant but not the prime minister on the same cause of action. That cannot be the position of the law,” he argued.
On the tort of misfeasance, Haniff said it is not necessary for Mahathir or the others to prove that they have lost land or properties as a result of being robbed, and contended that Najib as prime minister had made decisions for personal reasons.
“He had derailed investigations into 1MDB and we as citizens suffered loss,” he said.
On the breach of fiduciary duty, Haniff said the court must intervene to ensure rights of the people are protected.
“The PM is a trustee of the state on behalf of the people. If anyone believes that you had conducted in breach of that trust, then the people have the right to bring this matter to court.”
Haniff said the matter should go for trial and should not be struck out by way of affidavit as evidence ought to be adduced on decisions made by the government, such as who instructed the chief secretary to the government to remove the former attorney-general (Abdul Gani Patail).
Besides this, Najib is facing suits from former law minister Zaid Ibrahim and also Petaling Jaya Utara MP Tony Pua, also in relation to 1MDB.
Hafarizam said similar grounds will be tendered in the Najib’s striking-out application against Zaid and Pua.
Source : Hafiz Yatim @ Malaysiakini