Ghost of Spring Past

Fourth Prime Minister Tun Dr, Mahathir Mohamad had a dosage of bitter medicine when the court denied his suit of misfeasance against Prime Minister Dato’ Sri Mohd. Najib Tun Razak being a public servant, for a ghost of the unprecedented sacking of the Lord President Tun Mohamed Salleh Abas almost three decades ago.

NST story:

High Court strikes out suit by Dr M against Najib over public misfeasance

The High Court also ordered Tun Dr Mahathir Mohamad, former Batu Kawan MP Datuk Seri Khairuddin Abu Hassan, and former Langkawi Wanita Umno member Anina Saadudin to pay RM30,000 in cost to Prime Minister Datuk Seri Najib Razak. SADDAM YUSOFF

KUALA LUMPUR: The High Court today struck out a suit by Tun Dr Mahathir Mohamad and two others against Prime Minister Datuk Seri Najib Razak over tort of misfeasance in public office pertaining to the 1Malaysia Development Bhd’s (1MDB) funds.

Judge Abu Bakar Jais allowed Najib’s striking out application in chambers after finding that the Prime Minister is not a public officer in public office but a member of the administration.

He ordered for Dr Mahathir, former Batu Kawan MP Datuk Seri Khairuddin Abu Hassan, and former Langkawi Wanita Umno member Anina Saadudin to pay RM30,000 in cost to Najib.

Datuk Mohd Hafarizam Harun who acted for Najib said the application was allowed on the basis that there was no reasonable cause of action and the claim was frivolous and vexatious.

“The court agreed with our argument that the Prime Minster, Deputy Prime Minister and political secretaries are not in public services but they are a member of administration as defined in the Federal Constitution.

“Because they are not public officers in public office, therefore the causes of action that they have filed which is for breach of fiduciary duties or tort of misfeasance in public office cannot stand,” he said.

Meanwhile, counsel Mohamed Haniff Khatri Abdulla, who represented Dr Mahathir, Khairuddin and Anina, told reporters that they will be filing an appeal against the decision.

Najib filed the application to strike out the lawsuit brought against him by the three on grounds that there is no element of tort of misfeasance, as claimed by them.

On March 23, last year, Dr Mahathir, Khairuddin and Anina filed the suit against Najib over alleged abuse of power to obstruct investigation into the 1MDB issue, involving the remittance of RM2.6 billion and RM42 million into Najib’s personal accounts, among others.

They are seeking exemplary and aggravated damages of RM2.6 billion and RM42 million, respectively, among others.

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In the argument for Prime Minister Najib, solicitor Dato’ Hafarizam Harun presented to the Kuala Lumpur High Court that Dr. Mahathir failed to establish the act of malice, hence the claim for tort is insufficient.

The Sun Daily story:

Mahathir vs Najib court case: Act with malice not stated

newsdesk@thesundaily.com

Photo for representational purposes only — AFP

KUALA LUMPUR: The statement of claim for “misfeasance in public office” of former Prime Minister Tun Dr Mahathir Mohamad and two others did not state that Prime Minister Najib Abdul Razak is a ‘public officer’ or that he had committed an act with malice.

“Ingredients for tort of misfeasance are not there in the statement of claim,” said Najib’s lawyer Datuk Hafarizam Harun, when approached by the media, after the hearing an application to strike out civil suit filed by Najib in a High Court, today.

“By reading the statement of claim, you cannot find any of the ingredients that Najib is a public officer, that he had committed an act that caused an injury or the act is done with malice,” said Hafarizam.

Mahathir, Datuk Seri Khairuddin Abu Hassan and Anina Saadudin had sued Najib for alleged misfeasance of public office, on March 23, 2016.

Najib had filed an application to strike out the civil suit on April 19, last year, on the grounds that there were no elements of tort misfeasance and breach of fiduciaries in public office as claimed by the three.

Hafarizam also said there are differences between the ‘public services’, ‘public office’ and ‘public servant’ and ‘members of administration’.

He said Article 160 of the Federal Constitution excluded ‘members of administration’ to be in public services.

He explained that ‘members of administration’ are ministers, deputy minister and political secretary and therefore, it includes Prime Minister and Deputy Prime Minister.

Hafarizam also said that the suit should be struck out as there is lack of “facts and particulars” on how Najib had used his powers to cause injury to Mahathir, Khairuddin and Anina.

On the point of “public office”, Mahathir’s lawyer Haniff Khatri said: “It is not the ‘office’ (which is important) but it is the nature of the decision.”

“Our point is that, in tort of misfeasance, you don’t have to suffer specifically,” said Haniff. He said it is their complaint that the PM had conducted public decision for personal reasons.

The matter was heard before High Court judge Abu Bakar Jais in the open court, which was declared as judge’s chambers.

Decision is deferred to a date to be fixed, later.

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The Kuala Lumpur High Court ruled that Prime Minister Najib is “A member of the Administration” (Executive), which is a branch of delegated power by His Majesty Seri Paduka Baginda Yang DiPertuan Agong and “Not a public officer”.

This is a per defined by the Federal Constitution under Article 160.

It is a clear case for Dr Mahathir to use the court as an apparatus for his political agenda, considering that what is he claiming cannot any longer hold water in the eyes of public.

The public confidence on him of doing the right thing, pertaining to oust Prime Minister Najib is waining at the more steep angle that he expected to be.

Many legal practitioners opined that Dr, Mahathir destroyed the judiciary in that episode. There are who believed that he had victimised Salleh and five other Supreme Court Justices sacked or suspended, for political reasons.

It was a black mark on Malaysian Judiciary and it had never fully recovered.

The Malay Mail Online story:

Ex-judge: Judiciary never fully recovered from 1988 crisis

Sunday September 20, 2015
12:20 PM GMT+8

Malaysia’s judiciary has remained under a cloud since the 1988 constitutional crisis that saw the dismissal of Salleh during the administration of Tun Dr Mahathir Mohamad. ― File picMalaysia’s judiciary has remained under a cloud since the 1988 constitutional crisis that saw the dismissal of Salleh during the administration of Tun Dr Mahathir Mohamad. ― File picKUALA LUMPUR, Sept 20 ― The sacking of then Lord President Tun Salleh Abas during the 1988 judicial crisis was a national tragedy that continues to haunt the judiciary till this very day, retired Court of Appeal judge Justice Datuk Mohd has said.

“Yes, by now, after some 27 years since that dark episode, the judiciary has probably recovered, but still to a very limited extent.

“The negative public perception against the judiciary is still there,” Hishamudin said in an interview with The Star which was published today.

He said Salleh and the five Supreme Court judges were innocent of the charges.

In 1988, Salleh was brought before a tribunal for misconduct, and the five Supreme Court judges who granted him an interim order against the tribunal were either sacked or suspended.

“Indeed, as the late Tun Suffian (a former Lord President) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the judiciary would recover in a generation from today’,” Hishamudin added.

Hishamudin stressed that a judge is required by his oath of office to dispense justice in accordance with the law and the constitution, and without fear or favour.

“Judgeship is a public trust,” he said.

Malaysia’s judiciary has remained under a cloud since the 1988 constitutional crisis that saw the dismissal of Salleh during the administration of Tun Dr Mahathir Mohamad.

Dr Mahathir denied responsibility for Salleh’s sacking, and blamed the late Sultan Iskandar Ismail for using him to vent his annoyance with Salleh who had complained about the noise coming from renovation works at the Johor ruler’s house.

Sultan Iskandar’s son, Tunku Abdul Majid Idris Sultan Iskandar, however said that Dr Mahathir had “used” his father to remove Salleh.

Salleh’s removal is widely viewed as the point at which Malaysia’s judiciary began to lose its independence.

In 2008, de facto law minister Datuk Zaid Ibrahim prompted the administration to tender an open apology to Salleh and the judges affected by the so-called judicial crisis.

“We should seek forgiveness. In the eyes of the world, the judicial crisis has weakened our judiciary system,” Zaid reportedly said then.

Tun Abdullah Ahmad Badawi, when announcing ex-gratia payments in 2008 to Salleh and the six Supreme Court judges who lost their seats on the bench, had conceded that the judiciary crisis was one that continues to haunt the nation.

The position of Lord President no longer exists, superseded by the rank of Chief Justice, while Malaysia also replaced the Supreme Court with the Federal Court in 1994.

– See more at: http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciary-never-fully-recovered-from-1988-crisis#sthash.sGg64bp0.dpuf

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The very Judiciary system came biting back.

For him to sought recourse by bringing in his political dispute against Prime Minister Najib to the judiciary system which he tempered with and destroyed is reflective of his desperation.

Dr Mahathir’s desperation is glaringly clear when he is being haunted by his own contractions like teaming up with Anwar Ibrahim, PKR and Reformasi, Lim Kit Siang and DAP and Neo Con Jews.

The poetic justice is that no soul had to take any revenge against Dr. Mahathir but his own contradictions served him the cold sharp incision deep into the still beating heart.

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Published in: on May 2, 2017 at 23:59  Comments (1)