Federal Court rules that the Prime Minister is a “public officer” for purposes of tort of public misfeasance.
In a parliamentary democracy modelled after the Westminster system, Parliament is democratically elected by the people. Parliament then entrusts power to the public officers, for instance, the Prime Minister and members of the Cabinet to execute governmental and administrative functions. The power conferred to such public officers must therefore be exercised faithfully for the public good in the interests of the nation. It is never meant to be misused or abused. Accordingly, public officers are subject to certain additional duties that are imposed on them by common law or statute, the breach of which may expose them to legal liability, including liability for the common law tort of misfeasance in public office.
Historically, the tort of misfeasance in public office can be traced back to the 17th century case of Turner v. Sterling (1671) 2 Vent 25. The Privy Council subsequently in Dunlop v. Woollahra Municipal Council [1981] 1 All ER 1202 at 1210 considered that the tort was well-established. It was comprehensively reviewed by the House of Lords in Three Rivers District Council and others v. Bank of England [2000] 3 All ER 1, where Lord Steyn explained the rationale of the tort as follows:-
“The tort of misfeasance in public office is an exception to ‘the general rule that, if conduct is presumptively unlawful, a good motive will not exonerate the defendant, and that, if conduct is lawful apart from motive, a bad motive makes him liable’… The rationale of the tort is that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes… The basis for the action lies in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals”.
In essence, the common law tort of misfeasance in public office is founded on the unifying element of abuse of public power in bad faith. It is a tortious action providing a remedy for harm caused by a public officer’s acts and/or omission in abuse of his public power, who either knows that his conduct specifically intends to injure a claimant, or with the knowledge that he has no power to do the act complained of and that the act will probably injure the claimant. It is a private law action that exists independently of judicial review albeit similar in spirit, ultimately directed towards holding public officers accountable for abdication of duty and betrayal of the public trust. For, as Thomas Fuller pithily observed in 1733, “Be you never so high, the law is above you” (see R v. Police Commissioner of The Metropolis Ex parte Blackburn [1968] 1 All ER 763 at 777).
The preliminary and fundamental question would then be: who at law is a public officer? There is no exhaustive definition at common law as to who constitutes a public officer in the context of the tort of public misfeasance. Case law has illustrated that a ‘public officer’ includes a banking regulator (Three Rivers), a corporation entrusted with public duty (Henly v. Lyme Corporation (1828) 5 Bing 91), a local council (Jones v. Swansea City Council [1990] 3 All ER 737), a statutory corporation (Dunlop v. Woollahra Municipal Council [1982] AC 158), a Prime Minister and Attorney-General (Roncarelli v. Duplessis [1959] SCR 121) and former Ministers (Marin and Another v. Attorney-General [2011] CCJ 9 (AJ)).
Back home, a Malaysian taxpayer was aggrieved by the conduct of the then Prime Minister and the Finance Minister who had allegedly abused his public office to personally benefit and/or profit from his receipt of moneys belonging to a national sovereign fund, a fund founded on public funds and which therefore ought to have been utilised in the interests of and having regard to the citizens of Malaysia. He then brought a claim against the then Prime Minister and the Government of Malaysia in the High Court premised on the common law tort of misfeasance in public office (Tony Pua Kiam Wee v. Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak & Anor [2018] 8 MLJ 43). The High Court summarily struck out the claim on the ground, among others, that a Prime Minister was not a “public officer” under the common law tort of misfeasance in public office, bound as it was to follow an earlier decision of the Court of Appeal in Tun Dr Mahathir bin Mohamad & Ors v. Datuk Seri Mohd Najib bin Tun Hj Abdul Razak [2017] 9 MLJ 1 which had so held. The decision of the High Court in Tony Pua was subsequently upheld by the Court of Appeal in Tony Pua Kiam Kee v. Kerajaan Malaysia & Anor Appeal [2019] 1 CLJ 365.
At this juncture, one might be forgiven for being unable to comprehend, both as a matter of logic and common sense, how a member of the Executive (the Prime Minister no less), who plays a direct role in the conduct and/or management of the affairs of the State vis-à-vis ordinary citizens, (i) is not regarded as a “public officer” in the eyes of the law, and (ii) cannot be liable in tort notwithstanding his outrageous conduct resulting in the loss and misuse of substantial public funds. This cannot possibly be right as a matter of law and/or policy.
Aggrieved and disgruntled, the taxpayer then obtained leave to appeal to the Federal Court. The Federal Court in Tony Pua Kiam Wee v. Government of Malaysia (Civil Appeal No.: 01(i)-44-11/2018(W)) heard together with Tony Pua Kiam Wee v. Datuk Seri Najib bin Tun Haji Abdul Razak (Civil Appeal No.: 02(i)-111-11/2018(W)) delivered its landmark decision on 19 November 2019, where the apex court held that the Prime Minister was indeed a “public officer” for the purposes of the tort of misfeasance in public office.
The Federal Court first briefly explained the rationale of the tort of misfeasance in public office and endorsed the meaning of “public officer” described in Henly where Best CJ made the pertinent observation as follows:-
“Then, what constitutes a public officer? In my opinion, everyone who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.”
The Federal Court went on to examine whether the definition of “public officer” in section 3 of the Interpretation Acts 1948 and 1967 (“Interpretation Acts”) and Article 132 of the Federal Constitution (the purported basis for the Court of Appeal’s earlier decision in the Tun Dr Mahathir case) was enacted with the specific purpose of abrogating the common law tort of misfeasance in public office, more particularly whether such provisions had effectively narrowed the definition of a ‘public officer’. In this context, the Federal Court held that statutory definition of the term ‘public officer’ in the Interpretation Acts was of general application and was useful solely for the purpose of interpreting written law. It could not and ought not to be used for the interpretation of the common law tort of misfeasance in public office.
It was further pronounced that tort of misfeasance in public office is grounded on the rule of law, a fundamental feature of the constitution where no man is above the law and all are equal before the law. Nallini Pathmanathan FCJ enunciated at paragraph [146] that:-
“The doctrines of the rule of law and the separation of powers underpin and comprise the ‘internal architecture’ of our Constitution (as so aptly put by the Supreme Court of Canada). So, to conclude that the definition of public officer in Malaysia excludes members of the administration such as a Prime Minister, so that members of the administration like the defendant/respondent in the instant appeals, may allegedly act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action under this tort, is anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution. Such a construction of the term ‘public officer’ which erodes the rule of law, is repugnant and cannot prevail.”
The Federal Court opined that a person holding public office or a public officer in the context of the tort of misfeasance should be construed broadly without a need to alter the basic elements of the definition under the common law. It must apply to “those vested with governmental authority and the exercise of executive power” (per Lord Hobhouse in Three Rivers). Accordingly, the apex court concluded that the then Prime Minister fell within the ambit of a ‘person holding public office’ or a ‘public officer’, as envisaged under the common law tort of misfeasance in public office.
The Federal Court further held that the term ‘public officer’ in section 5 of the Government Proceedings Act 1956 includes the Prime Minister and ministers of the Cabinet, so as to make the Government vicariously liable for misfeasance by the same.
The decision of the Federal Court in Tony Pua is indeed exciting and noteworthy, as it was authoritatively and conclusively held that the Prime Minister and/or a Minister now constitutes a public officer under the common law tort of misfeasance in public office. It honours and reinforces the truism that all powers and discretion possessed by a public officer, whether conferred by statute or by contract, are possessed solely for the public good and cannot be exercised for ulterior and improper purposes, and which brings to mind the celebrated quote of the late Raja Azlan Shah AG CJ (Malaya) (as His Royal Highness then was) in Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn [1979] 1 MLJ 135 (FC):-
“… Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene…”
Accordingly, the holders of the highest offices in public administration, who have been entrusted with the greatest public power, must therefore exercise their corresponding duty for the public good in accordance with the rule of law, and must be held accountable to the fullest extent when they fail to do so. It is only right that, where such power is abused or misused to the detriment of the public, aggrieved citizens injured in their personal capacity are afforded legal redress by way of a private law action, in addition to the public law remedy of judicial review of administrative action.