THE lawyer representing Najib Razak in a suit brought by Dr Mahathir Mohamad said that the country’s topmost four judges, appointed by the prime minister last month, should not preside over the case.

The federal court today postponed a review application by Dr Mahathir against Najib for abusing his power while in public office pertaining to the scandal-ridden 1Malaysia Development Bhd.

Najib’s lawyer, Hafarizam Harun, raised the matter on whether the country’s four most senior judges, who will be on the seven-judge bench, should be allowed to preside over the prime minister’s suit.

“We advised whether it is appropriate for the four judges to hear the case,” he told reporters at the Palace of Justice today after applying for Chief Justice Richard Malanjum to recuse himself from hearing the case.  

Also sitting on the bench are Court of Appeal president Ahmad Maarop, Chief Judge of Malaya Zaharah Ibrahim, and Chief Judge of Sabah and Sarawak David Wong Dak Wah.

The tort of misfeasance suit will be heard after a Federal Court hearing of a separate suit by Damansara MP Tony Pua in November 5, which will decide on whether Najib can be classified as a public officer while he was prime minister.

Dr Mahathir’s lawyer, Haniff Khatri Abdullah, accepted the postponement decision and said the issue of whether or not Najib could be defined as a public officer needed to be resolved.

“The definition of public officer haunts the judicial system and will continue to haunt it until it is corrected,” he said.

Dr Mahathir’s suit, jointly filed with former Batu Kawan Umno vice-chief Khairuddin Abu Hassan, sought a review of the federal court’s decision to refuse to grant them leave to appeal against the High Court and Court of Appeal’s decisions to strike out the suit.

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

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.

In a landmark ruling on April 28 last year, the High Court allowed Najib’s application to strike out the suit, ruling that the prime minister was not a public officer but a member of the administration. The Court of Appeal and the Federal Court maintained that ruling.

Earlier this year, Pua filed a suit of misfeasance in public office against Najib, following the alleged abuses in 1MDB.

The Court of Appeal ruled on July 20 that Najib is not a public officer. Pua’s appeal to that ruling will be heard later this year.

Even if he is not deemed a public officer, Najib can still face criminal charges. – August 6, 2018.