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Posted on 30th November 2019

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Malaysia’s apex court, the Federal Court has clarified that the Prime Minister (PM) and cabinet ministers are public officers for an action taken under the common law for the tort of misfeasance, and that the government of the day can be held vicariously liable for any wrongdoing ministers commit. 

The uncertain arose in a suit brought by a former member of the opposition party against former Prime Minister Najib Tun Razak for his role in the 1MDB scandal. The defence argued that the PM was not a public officer as the Federal Constitution defined him as a member of the administration.

The decision of the court handed down by a full bench of seven judges corrected an earlier decision that ruled the PM and members of the Cabinet are members of the administration under Malaysia’s Federal Constitution, and not public officers.

The judgement of the court was delivered by Justice Nalini Pathmanathan said the reasoning and interpretation of Articles 132(1) and (3) of the Federal Constoitution are untenable for the tort of misfeasance and could only apply for the purposes of the Constitution.

She further explained that a purposive reading of Article 132 reflects the administrative structure envisaged for the governance and operation of the Federation, and not to determine who can be held liable for misfeasance while holding public office.

“This means that ministers are no less holders of public office in the context of misfeasance in public office. They derive their salary from the public purse and carry out their functions with a public purpose.

“Therefore 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’,” she explained.

Nalini also found support for the Court’s reasoning from a foreign decision that expressed that the tort of misfeasance in public office was a concept used in common law to ensure that executive or administrative power must 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.

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