by GK Ganesan Kasinathan, Advocate and Solicitor, Kuala Lumpur
A recent spate of social media messages argue that the former prime minister Najib enjoys absolute immunity from criminal sanction. The messages refer to an article by Mr 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, Tun Mahathir 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 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 turns up to vote at a local polling station – except that Ashby had a right to vote. The case eventually came before Chief Justice Sir 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?
But, Najib’s lawyers argued that Malaysian Courts should not look at English cases on this point. Najib, as PM, they said, was not a ‘public officer’ [under Articles 132(3) and 160(2) of the Constitution]. However, courts threw out Mahathir’s suit.
Art 132(3) explains what a ‘public service’ is not: is like saying, ‘… a pot, a kettle, a spoon (etc.)… shall not mean food.’ So if a word is absent from a negative definition, it is ‘not excluded’. Art 132(3) says, ‘public service … shall not comprise the office of any member of the administration of the Federation.’ But the PM’s position is absent in Article 132(3). This means the any ex–PM cannot find protection under this clause.
Even if the Mahathir case is not wrong, the highest anyone can say of it is that the courts’ interpretation of the Constitutional phrase ‘public office’ is only binding on someone if he or she files a civil action. It has no bearing on criminal law.
Take a ridiculous example. Suppose, at a Merdeka parade, the PM, while inspecting the troops, draws a gun and kills a soldier. Are we to assume that, by reason of this Federal Court case, that the prime minister is immune from any criminal prosecution? No, he isn’t, because he can certainly be charged for murder, regardless of his constitutional position. Similarly provisions exist within the AMLA and the anti–corruption Act (MACC Act) which would make any person, including an ex–PM, liable if he or she is guilty of various charges of unlawful acts, or corruption.
Charles Hector seems to suggest that the former prime minister cannot be charged for ‘public servant offences’ because the courts are bound by the Federal Court’s interpretation of the phrase ‘public officer’.
How can that be?
Penal Code (Definition of a ‘public servant’, not a ‘public officer’)
The Penal Code is the primary criminal statute in the country. India and Malaysia share an almost identical code. In the Mahathir case, the Courts were not asked to consider – nor did they consider – what the Penal Code said about the phrase ‘public servant.’
In a 2009 case, the Federal Court spoke of a principle known as the ‘in house rule,’: [Datuk Captain Hamzah Mohd Noor]. A court, when faced with a Penal Code offence should look to the Penal Code. Thus if someone is charged with a crime which he had committed as ‘public servant,’ the courts must ask, ‘What is the meaning of the phrase ‘public servant’ in the Penal Code?
A public servant as ‘… every officer of Government whose duty it is to give information of offences, to bring offenders to justice, or to protect the public….’(sec. 21, Penal Code)
A second meaning is ‘… every officer whose duty it is to take, receive, keep or expend any property, on behalf of Government, or to make any… contract on behalf of Government.’
A third meaning is ‘… to investigate or to report on any matter affecting the pecuniary interests of Government, or to make, authenticate or keep any document relating to the pecuniary interests of Government, to prevent the infraction of any law for the protection of the pecuniary interests of Government…’.
Capitalising on an identical sec. 21 of its own Penal Code, Indian Supreme Court said that a Chief Minister is a person performing ‘public duties.’ He was therefore a public servant: [M. Karunanidhi v The Union of India .
So if any prime minister’s acts or omissions fall within the definitions given in the Penal Code, he can be charged under it. Note especially these crimes which involve a public servant: –
||Public servant concealing a
design to commit an offence which it is his duty to prevent;
||Public servant taking a
gratification, other than legal remuneration, in respect of an official
||Public servant framing an
incorrect document with intent to cause injury;
||Public servant unlawfully
engaging in trade; and
||Public servant unlawfully buying
or bidding for property.
Crimes Outside Penal Code – AMLA
The ex–PM can be charged under other Acts outside the Penal Code.
AMLA defines ‘money laundering’ rather widely. Any person who is involved in a transaction involving proceeds from any unlawful activity or conceals, disguises or blocks the establishment of its true nature [does this ring a bell anywhere?], or hides where the asset came from, commits the offence of money laundering. (Sec.4, AMLA).
If the ex–PM had been involved in money laundering activities he can be arraigned under the AMLA. The AMLA applies to every citizen, be he a lord or a lottery–ticket seller. Can he say that ‘I am protected from AMLA crimes, and can carry out any unlawful activity, because I am a public officer’? That would be a charter for crooks!
There is no ‘public officer’ protection here either.
MACC Act 2009
The MACC Act (MACCA) deals with corrupt practices. A prime minister who indulges in corrupt practices can be indicted under it. Under MACCA, the PM is ‘an officer of a public body’. Rather helpfully linking the Constitution to itself, MACCA explicitly says that a ‘member of [the] administration (read Government)’ is … a person holding office as Minister’: (Sec. 3 MACCA and Art 160(2) Federal Constitution).
Two questions will unravel the linkage between MACCA and the Constitution: Is the prime minister, a ‘minister’? Yes. Is he ‘holding office’ in the Federal Government? Of course.
And then the MACCA delivers the dagger. It defines an ‘officer of a public body, as ‘any person who is a member, an officer, or a servant of a public body, and includes a member of the administration, a member of Parliament, a judge… and any person receiving any remuneration from public funds’.
Is the Malaysian Government an ‘administration’? Yes. Is it a public body? Of course. Is the prime minister an officer of an administration or public body? Yes. Did the ex–PM receive remuneration from public funds’? Yes.
So, in conclusion, Sherlock Holmes, is the prime minister a ‘servant of the public body?’
Who would be daft enough to say No?
It is silly to argue that the PM is not a member of a public body. Being a public officer is no bar to prosecution under these provisions.
Constitutional interpretation must uphold Rule of Law
In 1973, a famed Indian lawyer, Nanabhoy Palkhivala successfully argued before the Indian Supreme Court that the ‘Constitution is paramount;’ that ‘all the organs of the government are subject to the Constitution’; that ‘the main framework of the Constitution is inviolable’, and that ‘the Constitution cannot be amended by Parliament so as to affect fundamental rights’: Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461. It became known in India as ‘the Basic Structure doctrine’.
Any constitutional interpretation that defies the rule of law cannot be good law. So how can a PM be ‘more equal’ than the rest of us?
The administration and the prime minister are both products of the Constitution. His office is a constitutional institution created to serve the people. Not his party, not his family, and certainly not his friends. The prime minister serves the entire nation and its organs. Those who hold high office must be held accountable for their actions or omissions. No premier should be allowed to shield himself behind any constitutional loophole: That is ‘not cricket,’ as any gentleman would say.
Where evidence shows he has breached the law, any person, be he penurious or prime minister, must account for his actions. So, these fears betrayed by the recent social media messages are unnecessary. We have enough arrows within the quiver of our criminal law to pierce and out these anxieties to rest.
How long would it take for anyone to understand that the Constitution itself is only the outward expression of the Rule of Law and the principle of Equality? That document has a divine spirit animating it. It houses all the hopes and aspirations of all the wise men and women who have gone before us. It represents all the struggles they went through so that we and our children could have a decent, meaningful, happy life. Its purpose is only to produce justice. Judges and leaders must see it in its full splendour. Why defy it?