Who said the Prime Minister is not a public officer?

Two separate panels of the Court of Appeal did.

One panel heard Mahathir’s appeal.  It delivered its decision in April of this year. The second panel of the Court of Appeal heard Tony Pua’s appeal and delivered its decision last week.

Both Mahathir and Tony Pua had sued the then Prime Minister Najib for the tort of public misfeasance. Both lost. When they appealed to the Court of Appeal (‘CA’), the judges decided that the ‘Prime Minister is not a ‘public officer’.

An ‘officer’ and the ‘public’

We start with two simple questions:

What does an ‘officer’ mean? In simple English?

It is someone: –

‘who holds an office of authority or trust in an organisation … such as government?’.

The operative words there are, ‘an office of trust’, and ‘government’.

What does the word ‘public’ mean? In plain English?

It is: –

‘Concerning people in general’.

Please bear these meanings in mind.

We are in danger of losing sight of the simple meaning of these two words because of what has happened in the last few years.

Mahathir v Najib

In 2016, Mahathir sued Najib. Mahathir complained of financial improprieties in a company called ‘1MDB’. The complaint was that 1MDB’s debts had plunged to unheard-of depths. Mahathir said that while Najib had been ‘in public office’—i.e. when he was Prime Minister – he had been guilty of the tort of ‘misfeasance in public office’. ‘Misfeasance’ means, quite simply, ‘misdeeds’. Mahathir argued that Najib had ‘undermined, subverted or compromised institutions’ which has been engaged in conducting various probes into 1MDB. The High Court threw Mahathir out. The CA agreed with the High Court.

So Mahathir had no choice but to file a ‘Leave Application’ to the Federal Court (‘FC’).

The Tony Pua case

Tony Pua sued Najib in 2017 for the same reasons.  But he started later.  And he expanded his list of complaints. Pua said (1) Najib acted for the rakyat; (2) Najib was the Pekan MP; (3) He was the PM; (4) and Najib was also the chairperson of the 1MDB’s board of advisors [Yes, we are all beginning to sound like the boy who copied Mat Sabu].  He did that to illustrate that acting in so many capacities simultaneously put Najib in a position where he could not deny he had been, all along, acting for the  benefit of the people in general – in fact that it was his duty to do so.

Pua alleged that in one or more of those capacities, Najib had had a direct role in the fate of 1MDB. Thus, Najib was in effect acting as a ‘public officer’. In October 2017, the High Court struck out his case. It said Najib was not a ‘public officer’. ‘There was no question of Najib having been guilty of any public misfeasance,’ it said, pointing to Mahathir’s case.

Tony appealed to the Court of Appeal (‘CA’).

What the Court of Appeal in Tony Pua’s case said

Malaysiakini reported that the panel chairperson of the CA in Pua’s case as having said that:–

(1).    the CA in the Tony Pua case felt bound by the Mahathir CA judgement;

(2).    the CA in the Mahathir case had defined ‘public officer’ and ‘Prime Minister’ as two different entities;

(3).    Article 132(3) of the Constitution which defines ‘public service’ does not include any ‘member of the administration’;

(4).    a person who is an officer in a public service is a ‘public officer’ under the Interpretation Acts 1948 and 1967;

(5).    the PM is a ‘member of the administration’ whereas a ‘public officer’ is a member of the ‘public services;

(6).    a ‘public officer’ is appointed by the Public Services Commission, whereas a PM is appointed by the King;

(7).    thus the PM is not a public officer, and a public officer is not a PM and

(8).    since Mahathir’s Leave Application to the Federal Court had been dismissed it meant that the highest court in the land had agreed with the CA in the Mahathir case and the present panel was bound to follow that— [At the end, I will say a few words about the effect of Mahathir’s failure at the Federal Court on his Leave Application.]

 If  Malaysiakini reported this accurately (and we have no grounds to doubt that), this outcome was rather strange.

The presiding judge in Pua’s case seemed troubled enough to indicate that Parliament, or the Federal Court , should intervene and set aright this anomaly.

It was a judicial cry asking a higher authority to put matters right.

Najib’s strongest argument against Mahathir

The courts had said that for Mahathir to win his case against Najib, he had to prove a precondition – that the (then) PM was a ‘public officer’.

So, in order to defeat Mahathir, Najib’s lawyers had to argue that the PM was not  a ‘public officer’.

This is how Najib’s team did it:

First, his lawyers shot straight off to the Constitution.  They pointed to Article 132 of the Constitution. It defines ‘public services’ as:-

‘the Armed Forces’,

‘the judicial and legal services’,

‘the general public service of the Federation’,

‘the police force, the joint Public services’,

‘the public service of each State’, and

‘the education service.’

You see that this part says nothing of the prime minister, or the Government.

Second, the lawyers pointed to the Interpretation Acts 1948 and 1967  (let us call it the ‘IA’). They showed that section 3 of the IA had defined ‘public officer’ as: –

‘… a person holding, acting in, or exercising the functions of, a public office’.

Then, they pointed to the same section which defined ‘public office’ as: –

‘… an office in any of the public services’ – [namely any office in the Armed Forces, the Government’s general public service’ etc].

Finally they said ‘Article 132(3) of the Constitution which defines ‘public service’ does not say anything about a ‘member of the administration’; when in fact the PM was ‘member of the administration.’

Therefore – Najib’s lawyers argued – the tort of public misfeasance of a ‘public officer’ could not be maintained against Najib, or any Prime Minister. Because the entry point for that tort is that the defendant must be a ‘public officer.’

The conclusion was, the PM was not the ‘a public officer,’ because he was not serving in the ‘public services.’

The CA agreed with them.

Was Najib right?

Were these arguments correct?

What does the law say?

What Najib’s arguments missed

First, this is a case about a common law  civil wrong called ‘tort of misfeasance in public office.’  It is a complaint that the then PM had breached his duties as a trustee ‘in public office’ (fiduciary’ is the fancy word) to the people.  This law arose in the course of history.  It was developed by the courts.  It was not written down by any Act of Parliament. And therefore, it was not a ‘written law’.

Written law, under the same Acts that Najib had exploited [the IA], means four things – i.e. the Federal Constitution, Acts of Parliament, any minor regulations, or rules under them, etc. They don’t have anything to do with ‘common law’. Or trust law. That is a branch of common law developed in England and legally passed down to us through our Civil Law Act 1956.

That was the first mistake Najib made.

Second, certain parts of the IA cannot be used to construe any part of the Constitution. You will notice that Najib’s arguments had to deal with the phrase ‘public service’, ‘armed forces’ etc. These are words in the Constitution. Najib used section 3 of the IA to show why the phrase ‘public services’ in the Constitution did not apply to him.

You see that Sections 2 and 3 of the IA form the core of Najib’s arguments.

All that is in ‘Part I of the IA.

Section 2 of the IA – which is entitled ‘Application’ (meaning ‘how this Act is to be applied’) deals with ‘Part-I’ of the IA.

It says: –

‘Part I of this’ [IA] ‘shall apply for the interpretation of and otherwise in relation to … ‘ – and then it sets out five categories.

These five sub-categories are:

‘(a)    this Act and all Acts of Parliament enacted after 18 May1967;

(b)     all laws, whether enacted before or after the commencement of this Act, revised under the Revision of Laws Act 1968 [Act 1];

(c)     all subsidiary legislation made under this Act and under Acts of Parliament enacted after the commencement of this Act;

(d)     all subsidiary legislation, whether made before or after the commencement of this Act, revised under the Revision of Laws Act 1968;

(e)     all subsidiary legislation made after the 31 December 1968, under the laws revised under the Revision of Laws Act 1968.’

Can you see straightaway that the Constitution is not mentioned in those five categories?  So, it is plain that the IA can only be used to interpret those limited laws above. Second, these categories expressly exclude the Constitution [sec. 2(2), IA]. Third, this section does not  give the court powers to interpret the common law principles of the law of torts or the law of trusts. In fact Article 160 of the Constitution states that ‘law’ includes ‘the common law’. Again, the law of the tort of ‘malfeasance in public office’ was in existence long before ‘Merdeka Day’ (i.e. 31.08.1957) . The history  of this area of law (misfeasance in public office) can be traced back to 1703, perhaps commencing with the case of Ashby v White.  I said ‘perhaps’, because some legal historians point to its existences as far back as the late 17^th century. And Article 162 preserves that law, by these words:

‘… the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day.’

Why is that important? Because:-

First, the Constitution has preserved  the common law. The Constitution commands that any court applying ‘existing law’ must ‘bring it into accord’ with the Constitution [Article 162(6), Constitution].

Second, the IA, being ordinary legislation, cannot be used to ‘limit,’ or ‘cut down’ what is written in the Constitution.

Third, the Constitution is the supreme law. A Parliamentary Act is subordinate to the Constitution.  So if any Parliamentary Act limits or departs from the Constitution, it is void (Article 4, Constitution).

Fourth, only by a two-third majority in Parliament can anyone amend the Constitution [Article 159(3]. A mere Act of Parliament cannot. But that is the effect that Najib’s arguments brought about. What he did was a ‘back-door amendment’ to the Constitution.  It cannot be done.  It shouldn’t be done.

Those are four more reasons why Najib is incorrect.

The Government Proceedings Act

The fifth reason resides in the Government Proceedings Act 1956 (‘GPA’). Section 2 of the GPA defines ‘Government’ as: –

‘the Federal Government and the Governments of the States’.

So, who can argue that whenever the word ‘Government’ is used, it cannot mean the ‘administration’?

In the GPA, section 2 defines an ‘officer in relation to a Government,’ as including a person in the permanent or temporary employment of such Government and accordingly,

‘includes a Minister of such Government.’

Is the Prime Minister a ‘minister’? What do you think?

The GPA says some more interesting things. But let us be fair. The GPA is all about suing the Government, right? It is not about suing a person in charge of the Government, right?

Really?

First, section 5 states that the Government is liable in tort in the same way as any other private person is liable for the acts his agent.

‘… The Government shall be liable for any wrongful act done or neglect or default committed by any public officer in the same manner and to the same extent as that in which a principle, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent.’

Since the GPA says the Government is liable for the torts of its servants, can the PM – any prime minister – say he is ‘not the servant of the Government’? That would be daft, wouldn’t it?

The net draws tighter.

If the PM makes a mistake, and a victim suffers, can the victim sue the Government and ask for monetary damages? Suppose the PM takes money out of the EPF and uses it for his personal purposes; or some other dodgy purpose. And suppose there is a loss. Who would be silly enough to argue that the EPF contributors, being ordinary citizens, are not prejudiced by the loss? Or that such a PM is not responsible for that loss – because he is ‘not a public officer’? Or that the Government is not liable to repay the losses although the misdeed had been committed by its PM?

Further subsection 6(4) of the GPA states: –

‘[No] proceeding shall lie against the Government …. in respect of any act, neglect or default of any public officer, unless that officer was at the material time employed by the Government and paid in respect of his duties as an officer of the Government, or any funds certified by the appropriate financial officer for the purpose of this subsection…’.

Let us apply section 6(4) to the question whether the PM is a ‘public officer’.

Can the ex PM say he was not ‘an officer of the Government’? If he isn’t, he cannot, on behalf of Malaysia, negotiate with foreign countries. He cannot sign treaties. He cannot receive foreign dignitaries.

Who would then deal with us as a nation if a leader says he does not represent the ‘public’?

Can the ex-PM say he is not ‘paid in respect of his duties as an officer of the Government’? If he says that, where did the funds for his salary come from? Is he not paid from the taxes collected from the  public?

Can the ex-PM say that he received no wages from ‘any funds certified by the appropriate financial officer’?

Now, subsection 6(5) states that ‘appropriate financial officer’ means, in the Federal Government,

‘The Minister of Finance…’.

Take a wild, leaping guess who was the Finance Minister from September 23, 2008 to May 10^th, 2018!

Effect of Mahathir’s failure at Federal Court Leave Stage

The CA apparently said that because Mahathir failed get the Federal Court’s Leave to file an appeal against the CA’s decision, the effect had been that the Federal Court(on February 27, 2018) had somehow ‘approved’ the Mahathir’s CA decision.  With deference, this is incorrect.

In 2017, following a series of cases the Federal Court itself in Melawangi Sdn Bhd v. Lim Kian Hian that held that a dismissal of a Leave Application was no approbation of the CA decision against which leave had been sought. The Federal Court judges followed the words of Lord Diplock in the House of Lords case of  Modern Engineering v. Gilbert-Ash [1974].  Diplock said, the ‘refusal of leave to appeal does not imply approval by this House of a judgement sought to be appealed against. That judgement carries the same authority as any other unappealed judgement of the Court of Appeal – neither more nor less’.

So the Federal Court said, ‘With this statement of principle we respectively agree. The natural tendency, therefore, to claim that a judgement of the Court of Appeal which has been the subject of an unsuccessful Application for Leave carries  greater authority than one which has gone unchallenged, must be resisted.’

So that settles that.

Is the PM a ‘public officer’? What do you think?

So as you can see, for all these reasons, the Prime Minister is a ‘public officer’ for the purposes of the tort of public misfeasance.

A charter for thieves and misfeasors

These two Court of Appeal decisions are stunning, and earth shattering in their effect. How can that be? If these cases are right, a thieving minister may be convicted of a crime. But no civil court can compel the minister to repay what he – or she – had stolen.

If the CA was right, the entire Cabinet could not be guilty of malfeasance in public office. Every minister at the Federal and State Government can do what he or she likes with the public coffer.  With impunity.

It would become a charter for ministers to steal money – and then disappear with the loot into Singapore, London, the Cayman Islands, the British Virgin Islands or Argentina – and not pay it back at all.

Should we perpetuate this terrible state of affairs?

This is why one of the Court of Appeal judges called upon the Federal Court to set matters right.

Will the Federal Court do so?

We shall have to wait and see.