Need for clear definition of 'public officer', says Court of Appeal Judge

PUTRAJAYA: Court of Appeal Judge Datuk Yeoh Wee Siam today expressed the need for a clear definition of a "public officer.

She said it was timely for the Federal Court, or even the legislature, to decide or provide for a clear definition of a "public officer" for application in the law of tort of misfeasance in public office.

In her 20-page judgment, Yeoh said the appellate court three-man bench in dismissing Damansara Member of Parliament Tony Pua Kiam Wee's appeal against former Prime Minister Datuk Seri Najib Abdul Razak and the government, had decided not to depart from the decision taken by another Court of Appeal panel in another case.

She said the Court of Appeal, in the case of Prime Minister Tun Dr Mahathir Mohamad against Najib, ruled that Najib, in his capacity as Prime Minister then, was not a public officer.

She said as it stood now, the ruling of the Court of Appeal in Dr Mahathir's case, which ruled Najib was not a public officer, was still the authority since the leave to appeal application to the Federal Court by the appellants in Dr Mahathir's case was dismissed.

Yeoh said the court saw no reason to depart from the decision in Dr Mahathir case, adding that it was not for the appellate court in the present case (Pua's case against Najib) to review the decision in Dr Mahathir's case or to come up with another decision inconsistent with that decision.

"We are of the considered opinion that it is time either for the Federal Court, or even the legislature, if necessary, to decide on or provide for a clear definition of "public officer" for the specific purpose and application in the law of the tort of misfeasance in public office," she said.

Yeoh said in Dr Mahathir's case, the Court of Appeal defined "public officer" and "Prime Minister" as two different entities, where the Prime Minister was not a public officer, but a member of the administration, and a public officer as a member of the public service.

She said the appellate court, in its judgment in Dr Mahathir's case, ruled that a public officer was appointed by the Public Services Commission, whereas a prime minister was appointed by the Yang di-Pertuan Agong.

Yeoh said Pua's claim against Najib for alleged misfeasance in the handling of the 1Malaysia Development Berhad (1MDB) fund was unsustainable and ought to be struck out as the then former premier was not a public officer.

She said there could be no cause of action grounded in the tort of misfeasance in public office if Pua was not able to prove that Najib was a public officer.

She said it was not permissible for the court to apply the common law meaning of "public officer" when there was a written law in force in Malaysia to define the meaning of the words.

Yeoh said according to Section 3 of the Interpretation Acts 1948 and 1967 and Articles 132(1), 132(3), and 160(2) of the Federal Constitution on the interpretation of "member of the administration", a prime minister is not a public officer.

She said Pua's claim against the government on the latter's vicarious liability for Najib also could not be sustained and ought to be struck out.

On April 13, this year, a Court of Appeal three-man bench comprising Justices Datuk Ahmadi Asnawi, Datuk Kamardin Hashim and Yeoh dismissed Pua's appeal to reinstate his lawsuit against Najib and the government which was struck out by the High Court.

Pua sued Najib and the government on Jan 16 last year for misfeasance in public office over the 1MDB issue and had sought general, aggravated and exemplary damages, interest, cost and other relief deemed fit by the court.

Pua's claim against Najib was based on the cause of action of the tort of misfeasance committed in public office and he contended that Najib was a public officer by virtue that he was then a member of Parliament, the Umno Presiden, chairman of the then ruling coalition Barisan Nasional, Prime Minister and Finance Minister and the Chairman of the Board of Advisors for 1MDB.

Pua alleged that in those capacities, Najib had a direct or indirect role in the decisions and directions of 1MDB.

The Federal Court has fixed Nov 5 this year for hearing of Pua's application for leave to appeal.

Meanwhile, in Dr Mahathir case, the Prime Minister and former Batu Kawan Umno vice-chief Datuk Seri Khairuddin Abu Hassan had sued Najib for the tort of misfeasance in public office, but they lost their case at the High Court and Court of Appeal.

The High Court had allowed Najib's application to strike out the lawsuit filed by Dr Mahathir and Khairuddin after ruling that the Prime Minister was not a public officer, but a member of the administration. That decision was upheld by the Court of Appeal.

They had filed a review application which is fixed for hearing on Aug 6. — Bernama