Najib is the holder of a public office

If the prime minister is the holder of a public office and is paid from public funds clearly he is in a position of trust when it comes to the exercise of governmental or executive functions and powers including the utilisation of public funds.




The learned High Court Judge in his grounds of judgment has opted to give a very narrow and restrictive interpretation to the meaning of public office and public officer when in reality there is a difference between the two. The prime minister as a member of the administration is a holder of a public office exercising governmental or executive functions and powers. He is paid out of public funds and he is elected to Parliament by members of the public.

But for the purposes of the Federal Constitution, the Government Proceedings Act 1956 and the Interpretation Acts 1948 and 1967, the prime minister is not a public officer since he is not a member of the public services as defined in the Constitution. The reason for this is the protection afforded to the government and its servants from being sued in contract or tort in sections 5 and 6 of the Government Proceedings Act 1956. But that does not mean that the prime minister is not the holder of a public office.

The tort of misfeasance in public office applies to any body or person exercising governmental or executive functions or powers. The cases from the UK, Canada, Australia, New Zealand and India have held as much. It is the nature of the exercise of power by the person in public office or the body in question that matters and not its nomenclature.

Misfeasance in public office is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused their power. By any Constitutional definition the prime minister is the holder of a public office.

The Privy Council in Crawford Adjusters (Cayman) Ltd. v. Sagicor General Insurance (Cayman) Ltd. [2014] AC 366, P.C. speaking in the context of the tort of misfeasance in public office said: “The second exception comprises a limited category of causes of action in which the essence of the tort is the abuse of a public function for some collateral private purpose of the person performing it. This may be (and generally is) established by proof of targeted malice. The paradigm case is the tort misfeasance in public office, which in its modern form dates back to the decision in Ashby v. White (1703) 14 State Tr. 695. The tort may be committed by any person performing a public function notwithstanding that he is not actually employed in the public service: Henly v. Lyme Corpn (1828) 5 Bing 91, 107-108. As Lord Steyn put it in Three Rivers District Council v. Governor and Company of the Bank of England (No. 30 [2003] 2 AC 1, 190, malice is a condition of liability notwithstanding the general rule that it is irrelevant in the law of tort, because “the rationale of the tort 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 Outer House of the Court of Session of Scotland in the case of Robert Francis Phipps (AP) v. The Royal College of Surgeons of Edinburgh [2010] CSOH said: “…The matter is neatly put by Buxton LJ in Society of Lloyd’s v. Henderson & Others [2007] EWCA Civ 930, [2008] 1 WLR 2255, at paras 23 and 24 as follows: “23. Those formulations do not discuss how a ‘public officer’ is defined, and generally authority on the point is not easy to find. That may well be because, as I suggest later in this judgment, the answer in almost every case is obvious. However, Lloyd’s was able to point us to two relevant observations within the speeches in the Three Rivers case. Lord Steyn said … ‘The rationale of the tort is that in a legal system based on the rule of law the executive and administrative power may only be exercised for the public good’; and Lord Hobhouse …said that the tort concerned ‘the acts of those vested with governmental authority and the exercise of executive powers’. ..24. The requirement that the subject of misfeasance in public office should be a governmental body springs from the very nature of the tort. As Hale LJ pointed out … the nature of the wrong is that a public official, who is given powers for public, governmental purposes, misuses them for a different purpose, conscious that in so doing he may injure the claimant”.

To quote Lord Hobhouse in Three Rivers District Council and others v. Governor and Company of the Bank of England (No. 1) [2000] 3 All ER 1 in relation to the definition of “public officers” for the purposes of the tort of misfeasance in public office: “It is a broad concept” that applies to “those vested with governmental authority and the exercise of executive powers”.

Closer to home the Federal Court in Mohd Khir bin Toyo v. Public Prosecutor [2015] MLJ 429, F.C. held that: “[76] There is no definition of ‘officer’ in the Code. But s 21(i) of the Code provides that ‘the words ‘public servant’ denotes … every officer in the service or pay of Government, or remunerated by fees or commission for the performance of any public duty’ (Emphasis added). Accordingly, every officer in the service or pay of Government, which ‘includes the Government of Malaysia and of the States and any person lawfully performing executive functions of Government under any written law’ (see s 17 of the Code) or remunerated by fees or commission for the performance of any public duty is a public servant (Lim Kee Butt v Public Prosecutor [1954] 1 MLJ 35, per Matthew CJ, delivering the judgment of the court, who cited Nazamuddin v Queen-Empress (1901) ILR 28 Cal 344). [77] ‘The test to determine whether a person is a public servant is (1) in the service or pay of the Government and (2) whether he is entrusted with the performance of a public duty’ (Ratanlal & Dhirajlal, The Indian Penal Code (34th Ed) at p 29). As Chief Minister, the appellant was the presiding member of the State Executive Council (art 53(2) of the Constitution of the State of Selangor). The appellant was also a member of the State Legislative Assembly (art 63 of the Constitution of the State of Selangor). Pursuant to art 53(9) of the Constitution of the State of Selangor, the Legislature provided for remuneration to members of the State Executive Council. Pursuant to art 74 of the Constitution of the State of Selangor, the Legislature provided for remuneration to members of the Legislature. As Chief Minister and member of the State Legislature, the appellant was clearly in the pay of Government. As head of the State Executive Council which exercised the executive authority of the State (art 50 of the Constitution of the State of Selangor), the appellant was in the service of Government. And as Chief Minster, the appellant was paid by Government and entrusted with the performance of a public duty, which meant that he was an ‘officer’ under s 21(i) of the Code (G A Monterio v State of Ajmer AIR 1957 SC 13 at p 15, which was followed in The State Of Ajmer (Now Rajasthan) v Shivji Lal 1959 SCR Supl (2) 739; The State Of Gujarat v Manshankar Prabhasankar Dwivedi AIR 1973 330 at p 333). Even on one factor alone, namely appointment to the office for the performance of a public duty, the appellant was a ‘public servant’ (Queen-Empress v Parmeshar Dat (1886) ILR 8 All 201 at p 202; The Queen v Ramkrishna Das & ors 1871 Bengal Law Reports (Vol VII) 446 at p 448) and an ‘officer’ (Ismail Mohamed Hajee and other v The King (28)”.

Earlier the Federal Court in Public Prosecutor v. Datuk Tan Cheng Swee & Ors. [1979] 1 MLJ 166, F.C. held as follows: “A public officer for the purposes of the Ordinance No. 22 of 1970 is by reason of the use of the word “includes” in contradistinction to the narrower term “means”, not restricted to the class of persons in the temporary or permanent employment of a public body. We shall not attempt, even if we are capable of it, an exhaustive definition of a public officer, where the Legislature has failed to provide. Lord Mansfield in R v Samuel Vaughan 98 ER 308 held that the office of the First Lord of the Treasury was granted by Letters Patent under the Great Seal of England and therefore must be governed by the laws of England. In Henley v The Major and Burgesses of Lyme (1830) 103 ER 995, Best C.J. had to decide on what constituted a public officer. In his opinion “everyone who is appointed to discharge a public duty and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer.” In Whitaker [1914] 3 KB 1283, the Court of Criminal Appeal of England held that a colonel in command of a regiment of His Majesty’s Army is a public officer and guilty of the common law misdemeanour of accepting as a public officer a bribe from a firm of caterers as an inducement to accept their representatives as tenant of the regimental canteen. Per Lawrence J., in delivering the judgment of the Court at p. 1296: “A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharged, he is a public officer.” We accept that a public officer in the context of the relevant ordinance is an officer who discharges any duty in the discharge of which the public are interested, more so if he is paid from public funds”.

The Federal Court’s reference here to the case of R v Samuel Vaughan 98 ER 308 is apt because in England the First Lord of the Treasury appointed by Letters Patent under the Great Seal of England is also ex-officio the prime minister.

It is regrettable that a judge of first instance has chosen to disregard binding precedent of the Federal Court.

There is no discernible difference between a public officer and a public servant for the reasons stated above. Therefore, it was wrong for the learned Judge to conclude that the Federal Court decisions were limited to the definition of a public servant within the meaning in the Penal Code.

Whether the prime minister is a public officer and owes a fiduciary duty to the public is clearly a matter to be determined at the trial and not summarily by affidavit evidence. If the prime minister is the holder of a public office and is paid from public funds clearly he is in a position of trust when it comes to the exercise of governmental or executive functions and powers including the utilisation of public funds. He is answerable to the taxpayers of this country and the general public. That is the essence of any representative democracy.

What the High Court decision has done is to effectively immunise the prime minister from civil suit which is a right not even extended to his Majesty the Yang di-Pertuan Agong and their Royal Highnesses the Malay Rulers who can be impleaded before the Special Court.
The decision of the learned Judge also offends Article 8 (1) of the Constitution on equality under the law. It is untenable to argue that an elected politician can be above the law if he chooses to abuse or misuse his powers in the exercise of his public duties and functions.
In the Case of Prohibitions [1607] EWHC J23 (KB) the Chief Justice of England Edward Coke famously said: “That the King ought not to be under any man but under God and the law.” In Malaysia, it would seem that the King is indeed under God and the law but not his first and principal minister.

With the greatest respect to the learned Judge this is a case that warrants appellate intervention given that the Judge has seriously misdirected himself on the law.

Gerard Lourdesamy is a practising lawyer for nearly 25 years and an FMT reader.