KUALA LUMPUR – Jan 18, 2017: Anonymous blogger A Voice has rebuked DAP lawmaker Tony Pua for filing a suit of misfeasance in public office against Prime Minister Datuk Seri Najib Razak.
In a post at Another Brick in The Wall today, the blogger presented arguments that the basis of the suit, which is in relation to the interpretation of public officer can be considered as erroneous, adding that the suit will fail.
Pua, who is Petaling Jaya Utara MP, filed the suit at a high court here yesterday, seeking a declaration that Najib had abused his public office to personally benefit from 1Malaysia Development Berhad (1MDB) funds.
The blogger, quoting an anonymous legal expert, wrote that the suit is invalid as the PM’s post is not to be regarded as a public officer’s post.
“One prominent lawyer informed us (through WhatsApp) that the suit is based on the assumption that Najib is a public officer.
“One element of the tort of misfeasance of public office is it must be shown that Najib is a public officer. He is not. The Interpretation Act defines public office as an office in any of the public services,” writes A Voice.
“Further, Section 132 (3)(c) of the federal Constitution states that the public service does not include the office of any member of the administration in the federation or a state. A member of the administration under Article 160 of the Constitution means a person holding office as minister.”
The blogger notes that based on the description stated in the aforementioned Act, ministers are not considered public officers.
“Najib is a minister but a minister is not considered a public officer. Therefore the suit will fail,” he wrote, quoting the lawyer.
The blogger claims that Pua’s move is only intended as a politically deceptive move to mislead the public.
However, lawyer Aidil Khalid disagrees with the arguments as per presented by A Voice.
Aidil said although one of the elements stated in the tort of misfeasance is that the defendant must at the material time be in public office, this must not be confused with unnaturally forcing the Constitutional term of public officer onto the common law principle of the tort.
“Definitions provided in the federal Constitution are meant to interpret the Constitution, and not to be stretched and applied to common law principles that evolve over hundreds of years and have their own sets of constructions.”
He added that many cases from similar Commonwealth jurisdictions have confirmed that ministers, and prime ministers included, who are holding office could be held accountable for cases involving the tort of misfeasance in public office.
He refers to the case of former Selangor Mentri Besar Mohamad Khir Toyo, whereby the Federal Court held that a public servant is in the service or pay of the government and is entrusted with the performance of public duty.
“The appellant (Khir) remained a public servant even while he wore the hat of chairman of PKNS, for the appellant ceased not to be a public servant just because he wore a different hat. The first ingredient of public servant was proven,” Aidil pointed out.