PETALING JAYA – Private citizens can hold politicians accountable and seek private law remedy for the tort of misfeasance in public office following yesterday’s landmark ruling by the nation’s top court, says retired judge Gopal Sri Ram.
Until now, he said, the public had been left at the mercy of the public prosecutor to frame charges against politicians in high office for abuse of power under the Malaysian Anti-Corruption Commission Act or the Penal Code.
“We have finally come out of the dark jungle that prevented civil action against politicians who are public officers following earlier court decisions,” he told FMT.
The retired Federal Court judge said Malaysian jurisprudence was now the same as England’s where this tort was developed some 300 years ago.
“We have finally joined the ranks of other Commonwealth countries such as India, South Africa and Australia where public office holders can be held accountable for their actions or omissions,” he said.
Sri Ram was responding to the ruling that former prime minister Najib Razak was a public officer and could be sued for alleged misfeasance in public office.
Federal Court judge Nallini Pathmanathan, who delivered the verdict of a seven-member bench, held that a prime minister or any other minister was a public officer under Section 5 of the Government Proceedings Act 1956.
Their ruling allowed Damansara MP Tony Pua’s appeal to reinstate his lawsuit against Najib and the government, which was struck out by the High Court and upheld by a Court of Appeal last year.
Nallini said there was no express legislative intent in either the Federal Constitution or the Interpretation Act to abrogate the common law definition of the term “public officer”.
She said this tort served to protect citizens’ reasonable expectation that a public officer would not intentionally injure 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.
Lawyer A Srimurugan said it was heartening to know that the tort no longer applied to civil servants but also politicians, whether elected or appointed.
“It is now left to legal luminaries to craft claims against any irresponsible defendants and develop the law in this country,” he said.
Srimurugan also said the tort was already applicable to civil servants.
He cited the 2017 case of former attorney-general Abdul Gani Patail and the government who had to pay RM230,000 in damages for malicious prosecution against then-PKR Youth chief Nik Nazmi Nik Ahmad.
Srimurugan said former Selangor police chief Khalid Abu Bakar, who later became the nation’s top cop, was also found liable under this tort when a secondhand car dealer was found dead in a police lock-up in Subang Jaya.