By P Gunasegaram
PERHAPS among the most important reform of all in new Malaysia post-GE14 is the one that comes from the judiciary, not the executive, whereby a landmark ruling on Nov 19 by the Federal Court makes it possible for the prime minister and ministers to be sued.
They may even be held personally responsible for wrongdoing and be required to make restitution.
This is a major decision by the Federal Court which reverses an earlier decision by the same court which held that the PM and cabinet ministers are members of the administration but not public officers, effectively removing previous blocks to sue them then.
While the decision is clear that the PM and ministers can be sued, whether they are liable or not will depend on the weight of evidence.
There is still not enough clarity on whether they would be required to pay damages from their own pockets, although the judgement seems to indicate that is possible.
It has far-reaching ramifications because civil action can be taken against PMs and ministers if they have wrongly or illegally overstepped their authority while in public office which is a very strong deterrent against them abusing their office, perhaps the strongest deterrence to date.
While they are in power, they may be able to swing lots of decisions in their favour but they will not be immune from public-interest cases which can be taken against them even when they are in power.
And these cases will be independently adjudicated by the judiciary, a major step forward indeed for Malaysia.
Spawned by 1MDB
The Federal Court ruling arises from a January 2017 case when DAP MP Tony Pua had sued then prime minister Datuk Seri Najib Razak and the government for misfeasance, which is the abuse of power or authority, over 1Malaysia Development Bhd or 1MDB. Pua said Najib had abused his public office and had received money from 1MDB, which were public funds.
There seems to be no copy of the full judgment available and for both the background to the case and the judgment, we rely on the various news reports from Malaysiakini, The Edge and The Star.
The unanimous 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 Nallini Pathmanathan who wrote the judgment and read the summary of the unanimous decision.
The Federal Court was asked to answer two questions of law posed by Pua, who was appealing a Court of Appeal and High Court decision that Najib was not a public official.
- 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?
- 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?
The unanimous decision was in the affirmative for both and 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.
To understand the judgment properly, it is necessary to explain some of the legalese.
According to Wikipedia, misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries against the holder of a public office, alleging that he has misused or abused his power.
It is different from nonfeasance which is a failure to act that results in harm to another party.
Misfeasance, by contrast, is some affirmative act that although may be legal, causes harm.
Vicariously liable, in this case, means the government becomes liable for the actions of its agents, for example, the PM or ministers. A tort is a wrongful act or infringement of a right.
“Tony Pua can proceed with his claim against Najib Razak and the Government of Malaysia by way of trial in a civil court,” Justice Nallini said.
However, whether or not Pua would succeed in the trial was a question of evidence, particularly in relation to the alleged damage he suffered, she added.
In her decision, Justice Nallini said 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.”
There was no specific written law in force in Malaysia which alters and substitutes the common law tort of misfeasance in public office.
Law envisages claim against public officer
She said Section 5 of the Government Proceedings Act envisaged that a claim may be brought against a public officer and this would include a claim against the Prime Minister, who is a public officer as envisaged under the Act.
She added the government could be held vicariously liable in respect of the acts of a Prime Minister or other ministers under misfeasance in public office but whether such an action was successful or not is a matter of fact and of law in the context of section 5 of the Government Proceedings Act.
Quoting a foreign judgment, Nalini said 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.
While it does not explicitly say so in the judgment as reported in the newspapers, it is likely that the judgment will open up possibilities as to whether the PM, ministers and public officials can be sued in turn by the government for any vicarious liabilities the government may incur and/or criminal action against them.
This unanimous judgment by the Federal Court of seven judges has finally put back accountability on the backs of the PM, ministers and public officials because they can now be brought to account in the courts for any abuse of power and can potentially also be sued for actions they may not have taken to prevent public loss.
Now, if the PM and others below him think of doing anything which may be even remotely not in the service of the public good, such as selling assets cheaply to cronies or awarding privatisation contracts via negotiated tenders at favourable rates, it is possible to challenge such decisions in the courts.
Hopefully, this decision sends a chill through the bones of public officials, who now include PMs, ministers, chief ministers etc – almost all politicians with power in their hands – and make them behave to a much higher standard of behaviour than we were previously used to.