The Federal Court is set to decide on the issue of whether the prime minister is a public officer or otherwise.

This follows after Damansara MP Tony Pua was today granted leave (permission) by a three-member Federal Court bench over his misfeasance in public office suit against former prime minister Najib Abdul Razak.

Chief Justice Richard Malanjum along with Chief Judge of Malaya Zaharah Ibrahim and Federal Court judge Justice Alizatul Khair Othman granted the leave.

Najib's lawyer Mohd Hafarizam Harun conceded to one of the questions with a minor addition.

The suit had earlier been struck out by the High Court after it ruled Najib was not a public officer and this was upheld by the Court of Appeal this year.

In upholding the striking out, Court of Appeal judge Justice Yeo Wee Siam wrote in her grounds released in July this year that it was time that a clear definition of a public officer is made.

Under common law principles, a public officer also includes members of the cabinet and the prime minister while the Federal Constitution stipulates otherwise.

Pua, who was represented by lawyer Malik Imtiaz Sarwar (below, right) argued that this matter should have gone through a trial and not be struck out as with the case of Dr Mahathir Mohamad and Khairuddin Abu Hassan who had also filed a similar suit against Najib.

Mahathir and Khairuddin's appeal was dismissed by the Federal Court in February. The bench was headed by the then chief justice Mohd Raus Sharif.

With leave granted today, the two questions to be decided by the apex court now are:

  • Whether the prime minister or any minister is a public officer under Section 5 of the Government Proceedings Act for the purposes of the tort of misfeasance in public office; and 
     
  • Whether a court, in determining if the prime minister or any other minister is a public officer for the purposes of the tort of misfeasance in public office, is limited by the definition of "public officer" in Section 3 of the Interpretation Act 1948 (1957) read together with Article 132 and Article 160 of the Federal Constitution.

Pua had filed his misfeasance in public office suit against Najib in January 2017.

He claimed Najib was a public officer since he was the Pekan MP, the prime minister and chairperson of the 1MDB board of advisers and that in those capacities he had a direct role in 1MDB to approve appointments and removals in the company.

In October last year, the High Court of Kuala Lumpur struck out Pua's suit on the grounds that Najib was not a public officer.

The Court of Appeal led by Justice Ahmadi Asnawi, which included Justice Yeoh, had upheld the High Court decision.

Meanwhile, at case management for the Mahathir and Khairuddin vs Najib case also today, lawyer Mohd Haniff Khatri Abdulla told reporters that the hearing for a review has been fixed on Feb 5, next year.

"Since the Federal Court has granted leave for Pua's matter, we shall in due course be writing to all parties and the courts for our review to be heard together with Pua's appeal if the court agrees," he said.