On Public Office: The Malaysian Judge misjudges

April 30, 2017

On Public Office: The Malaysian Judge misjudges

Image result for Din Merican

Comment: Najib is first of all an ordinary citizen like you and I. Like us, he is subject to the laws and regulations of Malaysia. Citizen Najib can, therefore, be sued and charged in our courts, and if found guilty he can be sentenced and sent to Hotel Sungai Buloh or Hotel Kajang as a guest of our King.  He has the right to appeal to the higher courts against a conviction.  Next, he is professional politician, an elected Member of Parliament for Pekan, Pahang, currently Prime Minister of Malaysia and incumbent UMNO President.

In my personal opinion as a citizen, Najib is to intents and purposes a public official. It does not take a 31-page opinion to prove that Najib Razak is not. As a public official, Najib has a fiduciary duty to act in accordance with the Constitution which defines his duties as Prime Minister. As an ordinary person, he is not above the law. Is the law an ass? I am unable to understand why High Court Judge Abu Bakar Jais thinks otherwise.  Where did he go to do law, I wonder. –Din Merican

Definition of Public Office Is Who Appoints And Who Pays!

Image result for High Court Judge Abu Bakar Jais

High Court judge Abu Bakar Jais (pic above) in his controversial ruling yesterday that Prime Minister Najib Abdul Razak is not a public official or public officer has detailed his grounds for the judgment in his 31-page decision.

Justice Abu Bakar said Najib’s lawyers argued that in initiating the suit, former UMNO leaders Dr Mahathir Mohamad, Khairuddin Abu Hassan and Anina Saadudin must first prove the offices that Najib occupies – as Prime Minister, Finance Minister, BN chairperson and UMNO President – are all public offices.

“The defendant maintained he is not a public officer and therefore cannot be liable for the tort of misfeasance in public office,” the judge said in throwing out the suit. Najib, he noted, also contended there is no fiduciary duty owed by him as PM, Finance Minister, BN chairperson and UMNO President to the plaintiffs.

“There is no mutual trust and confidence placed between the parties for a fiduciary relationship to exist,” Justice Abu Bakar said.

Our comment

by The Sarawak Report

The public appointed Najib and the public pays Najib.In return, Najib on assuming office swore to serve the public faithfully and honestly. He was given a position of immense trust in charge of the nations finances, which the judge acknowledges he may have abused.

Yet this judge has opined that Najib is nevertheless not accountable to the public and that there is no duty of trust nor any obligation not to betray his terms of office, as would pertain to a teacher, parking officer or judge.

This law officer has decided that Najib is above the law and that democracy is about electing which dictator you want to have steal from you next – your money and your liberties included.

12 thoughts on “On Public Office: The Malaysian Judge misjudges

  1. You don’t need any fancy educational qualifications or titles to know that anybody paid from public or taxpayer remunerations must be answerable and responsible for their actions. The kampong idiot knows it too. So it beggars the question how this ‘learned’ judge could come to such an astounding verdict. This case aside it does poses questions how the Malaysian judiciary conducts itself. As a nation going into our sixth decade of independence it has very scary consequences for our citizens. And I dare to ask ‘Is this how Anwar Ibrahim was judged and found guilty?’ God bless us all.

  2. There are avenues for judicial review and appeals going up to Federal Court.
    In Democracy, everyone, including the aggrieved, is entitled to his opinions.

    Let the process of the judiciary takes its course,without interference or delays, political or otherwise.

    Such is the ESSENCE and Beauty of a Democracy System
    where Separation of power and and Independence of the 3 branches of government—-Judiciary, Executive and Legislative, Must be Strictly Observed and Practiced (not abused) by anyone,leaders or Institutions——-to Sustain Law and Order ,(socio-economic and political) Stability and Security,
    so that Things Can Get Done in Growing the Economy, Create Jobs for the well- being of the people and country, going forward.

    The Federal Constitution RULES SUPREMELY !

  3. Regardless of what we may think of the judge’s ruling on “public officer”, let us be clear also what the “Tort of Misfeasance of public office” is:-

    In 2000, the House of Lords issued reasons for judgment in Three Rivers District Council v. Bank of England,, [2000] 3 All E.R. 1.1

    In this landmark case, the preliminary issue before them was whether a claim against the bank framed in the tort in misfeasance of public office was sustainable.

    The Bank of England had statutory authority over deposit-taking institutions. One institution, B.C.C.I., collapsed after fraud was committed on a large scale by senior staff. Several thousand depositors brought proceedings against the Bank of England for the tort of misfeasance in public office.

    The depositors alleged that senior officials at the Bank acted in bad faith by granting B.C.C.I. a license when they knew that was unlawful. They further alleged that the senior officials breached their statutory duty to supervise B.C.C.I. and to take steps to close B.C.C.I.

    In considering the motion before it, the House of Lords set out the elements of the tort and confirmed what to that point had been an emerging concept – that there was a second branch of liability that did not require proof of targeted malice.

    Lord Steyn, set out the elements of the tort as follows:-

    (a) the defendant must be a public officer.

    (b) the defendant’s conduct must involve the exercise of power as a public officer, or the exercise of public functions.

    (c) the defendant must be shown to have one of two states of mind:

    (i) targeted malice – conduct specifically intended to injure someone. This
    includes “bad faith” in the sense of exercising public powers for an improper
    or ulterior motive;

    or (ii) acting with subjective knowledge that he has no power to do the act complained of and subjective knowledge that the act will probably injure the plaintiff; or acting with subjective reckless indifference with respect to the
    illegality of the act and subjective reckless indifference to the outcome.

    (d) the public officer must owe a duty to the plaintiff, which may be established by
    showing that the plaintiff has the right not to be damaged or injured by a deliberate abuse of power.

    (e) causation – the plaintiff must show that the defendant’s abuse of power caused him harm as a matter of fact.

    (f) the plaintiff must show that he has suffered damages that are not “too remote” from the defendant’s tortious act. The plaintiff must show not only that the defendant knew his act was beyond his powers, but also acted in the knowledge that his act would probably injure the plaintiff or a person of the class of which the plaintiff was a member.

    The Three Rivers decision was cited with approval by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263. This case was also a decision on a preliminary motion to strike out.

    The Court accepted that there are two branches to the tort of misfeasance in public office, which it labelled “Category A” and “Category B”. Iacobucci J. states as follows at paragraph 22:

    Category A involves conduct that is specifically intended to injure a person or class
    of persons. Category B involves a public officer who acts with knowledge both that
    she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.

    The Court went on to find that there were two elements common to each form of the tort. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have be been aware both that his or her conduct was
    unlawful and that it was likely to harm the plaintiff.

    Now we look at the judge’s reasons for holding Najib is not a “public officer”:

    Justice Abu Bakar pointed to Section 3 of the Interpretations Act, which he said needed to be proven to show Najib is a public officer and he is in a position in public office.

    The section defines public office as an office in any of the public services and public officer means “a person lawfully holding, acting in or exercising the functions of a public service”.

    Article 132(1) of the Federal Constitution, the judge said, defined what public services are.

    Article 132(1) states that public services comprise the armed forces, the judicial and legal service, the general public service of the federation, the police force, the education service, the joint public services and public services of each state.

    “This provision (in the constitution) shows Najib is not a member of any of the services listed under this provision of the Federal Constitution,” the judge said.

    Justice Abu Bakar reinforced his finding by noting Article 132 (3) of the Federal Constitution, which states the public service shall not be taken to comprise the office of any member of the administration in the federation or a state or, the office of president, speaker, deputy president, deputy speaker or member of either House of Parliament, the office of judge of the Federal Court, the Court of Appeal or a High Court, and the office of a member of any commission or council established by the constitution and the diplomatic posts as the Agong may by order prescribe.

    He further looked at Article 160 (2) of the Federal Constitution, which states members of the administration means in relation to the federation – a person holding office as minister, deputy minister, parliamentary secretary or political secretary and in relation to a state. “Article 132(3) of the Federal Constitution lists down the offices that are to be excluded as public services, one of which is the office of any member of the administration in the federation or a state.

    “And who is the member of administration? It includes the defendant (Najib) by virtue of Article 160 (2) of the Federal Constitution, where a minister includes the PM as seen in the definition of minister in the Interpretations Act.

    “These provisions cumulatively will indicate that Najib is not a public officer and does not hold public office,” Justice Abu Bakar said.

    You be the judge.
    What tort? It is just common sense. It is a bad decision. Smacks of politics. No one is above the Law.–Din Merican

  4. Notice that Abu Bakar is UNTITLED. Guess he will be splashed with all kinds of titles soon. And I’m sure the public will be pouring all sorts on him. I sure have dozens in mind, not exactly honorary or praiseworthy.

  5. No minister should be get paid
    Then they are not public or civil servants
    Paul low
    What say u?
    Still enjoying your perks?
    Transparency my foot

  6. Not sure if this Yang Ariff read the same law books and Malaysian Constitution as the rest of the lawyers and judges in Malaysia. Surprisingly he’s a partner in the law firm of Hisham and Sobri specialising in Muamalat law. Maybe in Muamalat law the PM and other Ministers holding office are not considered public officials.

  7. You give UMNO leader and excuse, they will use it. It’s the crux of why the NEP and Islamism is so abused. It’s also why ultimately they will fail. Too many excuses ultimately is negative productively.

    Look at PAS Muktamar, the rhetorics and decisions are completely detached from reality because they have the ultimate excuse of blind faith. Like it or not, that is the future we are heading to. Not on metrics and facts but simplistic rhetorics.

  8. Quote:- “Not on metrics and facts but simplistic rhetorics”

    That was how Trump won his election for the most powerful office in the World.

  9. Judges can make bad judgements. especially in lower courts— no excuse, though they can be remedied. Still their decisions need to be respected.

    The aggreived should appeal against the decision at the higher courts which must hear and decide competently and quickly, as it is of Utmost Urgency and Importance to the Public Interest of the country where it involves the No.1 Public Servant.

    There shall not be any interference, at all time and circumstances.

  10. The good judge said that Najib is not a public officer; therefore it means that he is an Hantu. There is nothing in the Constitution or law that states that an Hantu can be prosecuted for all the evils he had done. A Hantu is unlike an human; he has no form and so can disappear into thin air. Thanks to Dr Mahathir for creating this supercreature that even he can’t put back inside the bottle. Good luck Malaysia, you are on the slippery path of becoming a failed state like Uganda. And also thank to the shallow, low-esteemed Malay Muslim whose practice of Islam is on the outer trappings rather than on the inner strength of the religion. Mahathir who once was invincible and treated like a god is now a pariah. He cannot feed the shallow Muslim Malays with dedak anymore.

  11. Most probably the judgment that this good judge had delivered was not written by him; he was advised by the defense team and fed with dedak from Najib. Remember the Lingam case?

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