May 3rd, 2017

PM not public officer, High Court Judge: Analysing the position of public servants

A HIGH Court judge made a ruling in Chambers on April 28 that members of the government administration, which includes all ministers and political secretaries, are not public servants but are members of the administration.

The general public may be perplexed by this ruling as most of us assume that politicians of whatever colour, creed or inclinations are elected to serve the public. That’s why they are called people’s representatives or public servants.

With the utmost respect for the learned judge’s ruling, we will try to fathom the intricacies of etymological reference of public servant. This is a rhetorical exercise based on the layman’s perception. The general perception is that there are two main sectors in the national economy – the public and private sectors. Workers in the public sector are referred to as civil servants, and include the armed forces personnel, employees of the various ministries at both state and federal levels, and teachers, among others.

The basic criterion is that the public servants receive their emolument from the government, specifically federal and state treasury, which derives its funds from taxing the people. And the government is the custodian of the public funds and manages it for the benefit of the people.

The question is “Are politicians public servants?” In principle, people choose to become politicians because they want to serve the people. This is most evident during election campaigns when they announce their manifesto of helping the people to better their lot. The focus is on the welfare of the people and portrayal of the selfless attitude of the candidate.

In theory, the people will elect those who can serve their interests. Therefore, on this count, the politicians are public servants.

Once elected, they draw their salaries and various allowances as well as allocations for their constituencies from the government whose funds come from various forms of taxation imposed on the people. Thus, they are public servants. Even though they are elevated to the position of ministers, they still remain politicians whose primary job is to serve the people.

As ministers, they become top public servants and assume a much greater responsibility to administer the affairs of the nation for the benefit of the people; thus their role as members of the administration.

In the final analysis, those who are paid through public funds to render services to the public are to all intents and purposes public servants.

Mohamed Ghouse Nasuruddin Universiti Sains Malaysia The STAR Letters 3 May 2017


High Court strikes out suit by Dr M against Najib over public misfeasance


KUALA LUMPUR: The High Court today struck out a suit by Tun Dr Mahathir Mohamad and two others against Prime Minister Datuk Seri Najib Razak over tort of misfeasance in public office pertaining to the 1Malaysia Development Bhd’s (1MDB) funds.

Judge Abu Bakar Jais allowed Najib’s striking out application in chambers after finding that the Prime Minister is not a public officer in public office but a member of the administration.


The High Court also ordered Tun Dr Mahathir Mohamad, former Batu Kawan MP Datuk Seri Khairuddin Abu Hassan, and former Langkawi Wanita Umno member Anina Saadudin to pay RM30,000 in cost to Prime Minister Datuk Seri Najib Razak. SADDAM YUSOFF

He ordered for Dr Mahathir, former Batu Kawan MP Datuk Seri Khairuddin Abu Hassan, and former Langkawi Wanita Umno member Anina Saadudin to pay RM30,000 in cost to Najib.

Datuk Mohd Hafarizam Harun who acted for Najib said the application was allowed on the basis that there was no reasonable cause of action and the claim was frivolous and vexatious.

“The court agreed with our argument that the Prime Minster, Deputy Prime Minister and political secretaries are not in public services but they are a member of administration as defined in the Federal Constitution.

“Because they are not public officers in public office, therefore the causes of action that they have filed which is for breach of fiduciary duties or tort of misfeasance in public office cannot stand,” he said.

Meanwhile, counsel Mohamed Haniff Khatri Abdulla, who represented Dr Mahathir, Khairuddin and Anina, told reporters that they will be filing an appeal against the decision.

Najib filed the application to strike out the lawsuit brought against him by the three on grounds that there is no element of tort of misfeasance, as claimed by them.

On March 23, last year, Dr Mahathir, Khairuddin and Anina filed the suit against Najib over alleged abuse of power to obstruct investigation into the 1MDB issue, involving the remittance of RM2.6 billion and RM42 million into Najib’s personal accounts, among others.

They are seeking exemplary and aggravated damages of RM2.6 billion and RM42 million, respectively, among others.


PM not public officer, High Court told in hearing to strike out 1MDB suit

KUALA LUMPUR: Prime Minister Datuk Seri Najib Razak is not a public officer and therefore the claim of tort of misfeasance over the 1Malaysia Development Berhad (1MDB) issue by Tun Dr Mahathir Mohamad and two others is unsustainable, the High Court heard today.


Prime Minister Datuk Seri Najib Razak is not a public officer and therefore the claim of tort of misfeasance over the 1Malaysia Development Berhad (1MDB) issue by Tun Dr Mahathir Mohamad and two others is unsustainable, the High Court heard today. (File pix)

Datuk Mohd Hafarizam Harun, who acted for Najib, said his client is a member of the administration, and based on Article 160 (2) of the Federal Constitution, members of administration are excluded from the public services.

Hafarizam was speaking to reporters after the hearing of Najib's application to strike out a suit against him by Tun Mahathir, 91; Batu Kawan Umno vice chief Datuk Seri Khairuddin Abu Hassan, 54; and former Langkawi Wanita Umno member Anina Saadudin, 41.

He said Najib's lead counsel, Tan Sri Cecil Abraham, argued that there is a difference between public services, public office, public servants and members of administration.

"Tan Sri Cecil made the argument that members of administration are ministers, deputy ministers and political secretaries, which, therefore, includes Prime Ministers and Deputy Prime Ministers," Hafarizam said after the hearing of the case in the chambers of judge Abu Bakar Jais.

He added that Abraham also argued that the ingredients of tort of misfeasance, as claimed by the three plaintiffs, are absent.

"We could not find any ingredient that Najib is a public officer; that he had committed an act that had caused injury; and that the act by Najib was done with malice," he said.

Hafarizam said that another point raised in reply was that the plaintiffs failed to particularise, in their claim, how Najib had used his power to cause injury to them.

"According to Order 18, Rule 7, of the Rules of Courts 2012, when you bring a claim, you have to particularise your facts and particulars.

"It is our argument that in the statement of claim, the plaintiffs have not particularised how Najib used his power to cause injury to Tun Mahathir, Khairuddin and Anina.

"We say on that, the suit should be struck out due to lack of particulars," Hafarizam said.

He also said the court has reserved its judgement to a date that will be fixed later.

Meanwhile, the plaintiffs', lawyer Mohamed Haniff Khatri Abdulla, said he had argued that the case could not be struck out at this stage, and that it should be decided after a full trial.

Najib filed an application to strike out the suit filed by Tun Mahathir, Khairuddin and Anina on grounds that there is no element of tort of misfeasance, as claimed by the three plaintiffs.

On March 23, last year, the plaintiffs filed a suit against Najib over alleged abuse of power to obstruct investigation into the 1MDB issue, involving the remittance of RM2.6 billion and RM42 million into Najib's personal accounts, among others.

Tun Mahathir, Khairuddin and Anina are seeking exemplary and aggravated damages of RM2.6 billion and RM42 million, respectively, among other reliefs sought.