©The Sun Daily (Used by permission)
Law Speak by Gurdial Singh Nijar
ROUTINELY, we hear cases of millions of ringgit of taxpayers' money squandered by public officials.
The auditor–general's annual reports list a litany of such cases – from overpriced binoculars to useless equipment and, most recently, RM10.3 million paid for an item that has not even been installed.
Can anything be done to make the abuser personally liable?
Yes. The public official or a public body can be held liable for a deliberate and dishonest abuse of power.
This is the tort of misfeasance in public office. The rationale? In a legal rule of law system, executive or administrative power must be exercised for the public good, not for improper purposes.
As declared a UK court: "We take it to be perfectly clear that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant: Henly v Lyme Corp (1928)."
The Privy Council decision on such liability in Dunlop v Woollahra Municipal Council (1982) was approved by our Federal Court, albeit in a dissenting judgment: Ng Kim Moi v PTD Negeri Sembilan (2004).
It must be shown that: the public official committed an unlawful act or omission with intent to abuse his power – whether knowingly or recklessly; that he did not honestly believe that his act was lawful (regardless whether he gained personally); and consequently someone was deprived of a benefit or suffered a loss.
Exemplary damages may be awarded for any outrageous conduct.
Liability extends to all exercising governmental functions including ministers: Common Cause, Society v Union of India and Others (Supreme Court, India) and Takaro Properties Ltd v Rowling (Court of Appeal, New Zealand). This issue – whether such an official can be sued – is pending in our courts in a high profile case.
If the act is a violation of a person's constitutional right, then the wrong is actionable without proof of damage.
Who will be held to pay? A case must be made out that the person responsible should be held personally liable. Else, ironically, the taxpayers will be the ones who will end up paying for the wrongful acts of the delinquent public officers.
As happened in the case of Teoh Beng Hock – where the suit was settled for RM600,000. As the MACC and the Attorney–General's Chambers agreed to the payment, there must have been an acknowledgement of fault by a public functionary. Yet the money will ultimately come from the ordinary taxpayer. This simply does not make sense.
In a recent case, a purchaser given a fraudulent search result by the land authorities, paid the full purchase price to the "fake" owner.
The court ruled that the pretended owner and the land office personnel had colluded to provide a false search result and ordered the government to pay damages of RM4.5 million.
Nine more similar cases were pending involving substantial claims. Again, the payment will come from public coffers.
Under the tort of public misfeasance, the officers responsible – and possibly their superiors – would be ordered to personally compensate the victim for their dereliction of duty. Surely this will be an effective deterrent against abuse of public office.
This does not, of course, mean that the delinquent officer(s) should not, additionally, be proceeded with under the criminal law – if the ingredients of a crime exist – such as corruption.
Courts have said so. The errant officers could also be subject to disciplinary action. Failure to initiate any of these proceedings could also be challenged in court under a process called judicial review.
All this, however, assumes that there is a person directly affected by the wrongdoing. What if the public interest is adversely affected – such as where the loss is of public monies as in the cases pointed out by the auditor–general. Who then can bring the action?
The rules in our country on this are archaic. The person who wants to sue must show that he has been adversely affected over and above all others similarly situated. This can be a difficult task.
The law in this aspect needs to be revamped and the right of the concerned citizenry (including NGOs) to sue restored. Else abuse of the public trust may continue unabated with impunity, undermining an important constitutional principle: that statutory powers be exercised in good faith and for the conferred purpose.
Gurdial, former law professor, is currently a legal consultant; and senior research fellow of the South Centre, Geneva. Comments: [email protected]