COMMENT | A recent spate of social media messages argue that the former prime minister Najib Razak enjoys absolute immunity from criminal sanction. The messages refer to an article by Charles Hector, entitled: ‘Najib – Cannot be charged for crimes as a public servant until law is changed?' Now, did Charles say the former PM was immune from any criminal prosecution?

In 2016, former premier Dr Mahathir Mohamad sued Najib. Mahathir alleged that there had been financial improprieties in 1MDB. He contended that while being in ‘in public office', Najib had been guilty of the tort of misfeasance. He complained that Najib had ‘undermined, subverted or compromised institutions' which were engaged in conducting various probes into 1MDB. The courts threw Mahathir’s suit out. They said no suit lay against Najib because the tort of misfeasance can only be directed at a ‘public officer.' The courts felt Najib was not a ‘public officer.'

Now, the Constitution defines ‘public service.' as the armed forces, the police force etc. (Art 132).

The tort of misfeasance is a civil wrong. It is not a criminal act. The idea of ‘misfeasance in public office' can be traced back to 1703. It arose from a suit filed by a landowner, Ashby. There was an election. When he tried to vote, one Mr. White, a policeman, prevented Ashby from voting. The policeman alleged that Ashby was ‘not a settled inhabitant' and, so, could not vote.

It is the sort of thing you would say to a foreigner who turns up to vote at a local polling station – except that Ashby had a right to vote. The case eventually came before chief justice John Holt. Holt determined that a landowner could sue the policeman who had deprived him of his right to vote. He ruled that White, as an officer of the public, had committed a tort of misfeasance. It came to be known as the Aylesbury election case' (Ashby v White).

This category of civil wrong is well-recognised in England and in some Commonwealth countries. It is an action brought against the holder of a public office, alleging that the office-holder has misused or abused his or her power. Over 300 years later, the House of Lords said, ‘… if a public officer knowingly and deliberately acts in breach of his lawful duty, he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity': (Watkins v. Home Office).

Does this description define Mahathir complaints?...