Former prime minister Dr Mahathir Mohamad and two others have lost their appeal over a misfeasance in public office suit filed against Prime Minister Najib Abdul Razak at the Court of Appeal today.

The three-member appellate bench upheld the decision of the High Court in agreeing that Najib could not be considered as a public officer, and the RM2.642 billion suit could not stand.

“We agree with the learned judge’s (of the High Court) decision. There is no merit in the appeal. We affirm the decision of the High Court,” said Justice Idrus Harun, who presided over the bench.

The other judges were Justice Vernon Ong and Justice Abdul Rahman Sebli.

The Court of Appeal also ordered the three to pay RM30,000 in costs.

Mahathir, along with former Umno members Khairuddin Abu Hassan and Anina Saadudin, filed the suit against Najib for misfeasance in public office and breach of fiduciary duty last year, in the wake of the 1MDB scandal.

High Court judge Justice Abu Bakar Jais on April 28 allowed an application by Najib to strike out the suit when he ruled that the prime minister was not a public officer.

Mahathir, Khairuddin and Anina had filed the RM2.642 billion suit in the High Court in Kuala Lumpur on March 23 last year, naming Najib as the sole defendant.

Lawyer Mohamed Haniff Khatri Abdulla, who appeared for the trio, indicated that they will file an appeal with the Federal Court probably, next week, as they have 30 days to do so.

Question the office the person holds

Haniff had earlier submitted that Justice Abu Bakar had erred in law in restricting his interpretation of a public officer based on statute, namely the Interpretations Act 1948 and 1967, and not in adopting common law principles regarding misfeasance in public office, which was the main issue.

He said that in a tort of misfeasance in public office, one should question the office the person holds and not adopt the definition.

“We have to look at the nature of the office, not the title. Hence, to give proper meaning, one has to relate to a broader perspective in order to be able to carry out tort of misfeasance in public office so as to provide check and balance to the position.

“Here, the action is against Najib, whose duty (and the seat he occupies) concerns the public. After all, the PM, when he took the position, his promise is to serve and have a duty to the public,” he said.

Haniff (photo) added that there is no written law for misfeasance in public office at present and if one were to limit the definition of a public officer, it would mean immunity for the ministers, which creates a question on the system of separation of powers (in a democracy).

“For the purpose of checks and balances, it is the duty of the court to consider the action and the court should not have allowed the striking-out application and should only make a decision after a full trial,” he said.

To a question from the bench, Haniff said under Section 5 of the Government Proceedings Act, there is no recognition on the tort of misfeasance but it stated the limitation (of an action).

Section 5 states that the "government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that Laws of Malaysia (Act 359) in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the government".

Haniff further said that the action taken by his clients involved an issue of great concern and affected various nationalities but saw no action by the enforcement agency in the country.

“That is why this action of the tort of misfeasance in public office should be allowed and be reverted back to the High Court for it to be heard on merits,” he said.

'Dr M, Khairuddin and Anina not affected'

Senior lawyer Cecil Abraham, who appeared for Najib, said the suit did not show any reasonable cause of action.

Cecil said one must establish three elements in any tort of misfeasance, namely that the respondent (Najib) is a public officer, the targeted acts of malice and that the illegality will injure the plaintiffs.

“If we look at the definition of a public officer within the meaning of the Interpretations Act, they have not even established the second and third elements. Hence, no cause of action,” he said.

Cecil further questioned how Najib's acts had affected the three plaintiffs.

The lawyer said Mahathir claimed that he was questioned by the police for his participation in the Bersih rally and his removal as an adviser (to Petronas).

“How do these acts have anything to do with the respondent (Najib), especially on the second element (of malice)?” he asked.

Looking at Khairuddin, Cecil said his complaints were that he was arrested, remanded under the Security Offences (Special Measures) Act 2012 and not allowed to travel overseas.

“However, these are independent causes of action. If they were wrong, he can sue the police and bring an action for malicious prosecution. My client is the PM and finance minister, and the relevant minister he should have brought his complaints was the home minister,” he said.

Cecil further probed Anina's claim as an Umno member who had filed various actions but said this should be considered a private claim against Umno as the party is not a public body.

He further described the suit as the "most bizarre statement of claim" for wanting Najib to return the money to the government.