REMEMBER that controversial Federal Court decision in February which gave Najib Razak a free pass from criminal prosecution after it ruled that a prime minister was not a public officer?

Well, that ruling may be overturned on August 6 when the apex court hears an application by Dr Mahathir Mohamad to review  that decision.

In any case, ‎ Malaysian authorities do not have to wait for that court decision in August because the MACC Act makes it clear that criminal charges can be brought against the former prime minister, said Haniff Khatri Abdulla, lawyer for Dr Mahathir.

In February, a three-man bench led by Chief Justice Raus Sharif upheld a High Court decision that Najib could not be sued for abusing his office as prime minister as he was not a public officer.

High Court judge Abu Bakar Jais had allowed Najib to strike out a suit by Dr Mahathir Mohamad last April, ruling that the terms “public officer” and “public office” in the Interpretation Act were only applicable to the class of civil servants as stated under Article 132 (1) of the constitution.

Further, Abu Bakar said Article 132(3) stated that the public service excluded the office of any member of the administration in the Federation or state.

Since the Federal Court affirmed the High Court decision, there has been swirling talk that no criminal charges can be laid against Najib. 

“That is wrong. Independent to the court decision, Najib can be charged criminally,” said Haniff.

Just before GE14, Haniff had filed an application to review the ruling by the Federal Court which decided that the prime minister, cabinet ministers, the attorney-general, menteri besar, are not public servants.

The Federal Court has fixed August 6 to hear Dr Mahathir’s application.  

Tort of misfeasance is a legal action against the holder of a public office, on allegations that the person has misused or abused his or her power.

“Independent to this renewed application, which only relates to the civil tort of misfeasance and any other civil action, Najib would not be able to escape any criminal action.

“And this is on the basis that he falls under the category of public servant, defined under the MACC Act, as what had happened to Khir Toyo,” Haniff said, referring to the former Selangor menteri besar.

The Federal Court convicted Khir in 2015 for committing a crime within his knowledge as a public servant, which was to obtain for himself and his wife two plots of land and a bungalow in Shah Alam.
 
Khir had been charged under Section 165 of the Penal Code for gratification by a public servant. He was sentenced to a year’s jail. 

Haniff said Dr Mahathir’s suit against Najib was filed only because the previous A-G, Apandi Ali, had not pressed criminal charges against Najib for alleged wrongdoing. 

“The Federal Court decision only regards the misfeasance suit.  At that time the A-G was paralysed. He didn’t take criminal action.

“So what we did was we filed a suit of misfeasance. So only in civil tort of misfeasance, the Federal Court decided he’s not a public servant. But that doesn’t mean he’s not a public servant in criminal action,” Haniff maintained. 

Dr Mahathir and two others, including expelled Umno leader Khairuddin Abu Hassan, took legal action against Najib in March 2016. 

In their statement of claim, the group traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then A-G Abdul Gani Patail’s sudden resignation, and the sacking of former deputy prime minister Muhyiddin Yassin.

They said Najib had continuously interfered with the due process of the law to ensure all the relevant authorities discontinued from carrying out and concluding the investigations into the 1MDB scandal.

They wanted a declaration that Najib had committed the tort of misfeasance and breach of fiduciary duty in public office.

Najib is being investigated for offences under the anti-money laundering act, over the sum of RM42 million paid by SRC International into his bank account. – June 16, 2018.