Written by: Averroes
Some time ago, the author had composed a harangue on the conduct and demeanour of certain MPs in parliament whose nature is akin to primal extraterrestrials. In which the whole deliverance of the article is purported to have contained elements of the Rule of Law which the author had adumbrated as under the scope of "Public Office".
With a recent precedent, individuals are now able to bring Prime Ministers and cabinet members to court for their alleged misconduct and contemptuous stature. This is when on September 18th 2020, a contractor failed their bid to attain an interim injunction to halt the government from stopping or terminating its contract in the Klang Valley Double Tracking Phase 2 (KDVT2) project.
This came when the High Court judge (Construction Division) Datuk Aliza Sulaiman dismissed the application instituted by Dhaya Maju LTAT Sdn Bhd, pending disposal of the suit against the Transport Minister Datuk Seri Dr Wee Ka Siong. The court came to that decision because, the court was bound to the Federal Court decision that no injunction can be made against the government and public officials while performing its public duties.
Her lordship added that the plaintiff did not even produce an official notice of termination and the civil action was premature, as the government had to continue their public duty concerning the KVDT2 project for public interest.
They were then directed to pay RM10,000 to the government for costs and the lawyer representing them, Tan Sri Cecil Abraham informed the court that the company would file an appeal against the decision to the Court of Appeal.
This string of events began when the Finance Minister Tengku Datuk Zafrul Abdul Aziz released a list of 101 projects awarded thru direct negotiations amounting to a staggering RM6.61 billion during the PH governance. Among them includes the KDVT2 project given to Dhaya Maju LTAT worth RM4.475 billion. Later, the current transport minister on August 28th issued a statement that they will reopen a tender for the KVDT2 project because of high cost and overpriced allocation to that company in the previous administration.
Though, the lawyer for the company said that they were not intending to hinder the government and minister in their public duties, it was practically contractual in nature and the status quo must be preserved. They were originally awarded and given a Letter of Acceptance (LOA) by August 19th 2019 and they are seeking an outstanding sum of RM137,054,534.21 from the Government and 5% intrerest per annum and damages for the Minister's liability, interests, costs and other relief necessary.
After reading over this tiring babble, we could see that a ruling government could not be brought to court while in power because of a Federal Court decision. Though, they did not specify which case, we may refer to other cases where once the Prime Minister resigns and his cabinet members no longer hold the helm and crux of power, they are liable for Tort of Misfeasance in Public Office as part of the Rule of Law spirit.
The role of a Public Officer and Member of Administration are two different sets of duties and obligations that are defined and established constitutionally, administratively and legally speaking in our common law jurisdiction. Among the cases to deduce and determine such position was in the case of Tun Dr Mahathir bin Mohamad & Anor v Datuk Seri Mohd Najib bin Tun Hj Abdul Razak.
This case sets the precedent that Najib who is was the former Prime Minister of Malaysia, Minister of Finance and the Chairman of the Boards of Advisors of 1MDB was alleged to have siphoned and misappropriated money for personal gratification and livelihood flamboyance. The case drew the separating line that the Prime Minister is not liable under the tort of misfeasance and immune from any proceedings against himself.
This was due that he was a 'Member of Administration' and should not be confused with a 'Public Officer'. We may differentiate this with a few provisions from the Federal Constitution and the Interpretations Acts 1948 and 1967.
The latter as under section 3 describes that,
"Minister means, subject to subsection 8(2), a Minister of the Government of Malaysia (including the Prime Minister and a Deputy Minister)."
"Public officer means a person lawfully holding, acting in or exercising the functions of a public office."
These provisions were later read with article 132(3)(a) and 160(2) of the Federal Constitution which reads respectively that;
"public service shall not be taken to compromise the office of any member of the administration in the Federation or a State;" (Public Officer)
"...in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary..." (Members of Administration)
Moreover, both of them are appointed differently as a Member of Administration is politically appointed as by virtue of section 66 of the Interpretations Acts 1948 and 1967 and article 43 of the Federal Constitution whereby, a Prime Minister is appointed by the Yang Di-Pertuan Agong if he politically gains the majority seats in Parliament, either member of the the Houses in Parliament and thereby he then elects his cabinet members.
However, a public officer is solely and only appointed by the Yang Di-Pertuan Agong as under article 132(2) of the Federal Constitution.
As time progresses, a new precedent was formulated as in the case of Tony Pua Kiam Wee v Government of Malaysia where it reached to the apex Federal Court. The court then gave judgement that the Prime Minister and his cabinet members are liable for Tort of Misfeasance, not because the court referred to the definition as provided by Written Law, but by the common law precedents adopted in other foreign jurisdiction.
This is because, section 3(1) of the Civil Law Act 1956 permits us to adopt such legal position.
It was entirely based on the Rule of Law principle where Malaysia recognizes it as part of our Basic Structure after the Indira Ghandi, Sivarasa Rasiah and Semenyih Jaya case. This would not have occured without the groundbreaking decision in India from the Kesavannada case and Loh Kooi Choon from Raja Azlan Shah whom unintentionally opined it without legal effect.
In the Tony Pua case, the court decided that ministers also fell within the category of person involved in public office. They relied on the case of Marin and Another v The Attorney-General of Belize for that matter where in that case.
Furthermore, the court relied on the case of Three Rivers District Council and Others v Governor and Company of the Bank of England where the Tort of Misfeasance in public office is rationalized on the premise of stitching the element of abuse of power in bad faith or mala fide. It is where, "The contention of tort in a legal system is based on the Rule of Law executive or administrative in power, 'may be exercised only for the public good' and not for ulterior and improper purposes."
This Rule of Law is based on the case of Nudo Atenza & Others Appeals v Public Prosecutor where, the relationship of Rule of Law and the Federal Constitution is for the courts to enforce it. It does not concern itself with the definitions provided.
Also, in the case of R v Whitaker, "A public office 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 discharges, he is a public officer."
This may be strengthened as provided in the case of Odhavji Estate v Woodhouse in the Canadian Supreme Court which states that, "the tort is linked with the action of intentionally injuring a person or a class of person, and secondly, a public officer who commits something with the knowledge that he or she has not authority to do so and likely knows of the repercussions on others." This case is cited with approval in Watkins v Secretary of State for the Home Department and others as well as in Roncarelli v Duplessis.
To conclude, the lawyer did state that this was of contractual nature. If so, normally then even a government at work and incumbent in power may be brought to court for breaching a contract, but if it deals with public duties before they resign, then it is disbarred.
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