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A Parti Amanah Negara (Amanah) lawmaker disagrees with the Kuala Lumpur High Court’s restrictive interpretation of a public office or public officer.

Hanipa Maidin was responding to the court’s decision on Friday to dismiss a suit filed by Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak.

The Sepang MP said while there is no doubt that one of the elements in the tort of misfeasance in public office is that the defendant must be a public officer, this however should not be treated from a pedantic viewpoint.

He pointed to Article 160(2) of the Federal Constitution, where public authority included the federal government.

“Thus, Najib, being prime minister, must necessarily be a member of public authority, and thus qualified to be termed as a public officer.

“In interpreting the first element of the tort of misfeasance in public office, the court normally gives a broad interpretation which, in essence, the officer must not exercise a private function but on the other hand, must exercise a public function using public funds.

“Definitely, the prime minister falls under this category,” he told Malaysiakini.

Hanipa, who heads Amanah’s legal division, said it is interesting to note that Najib’s lawyers had asked the court to include the prime minister in the definition of the phrase “members of the administration” in Article 160(2 ) .

“That shows he was asking the court to give a broad meaning of the word minister.

“As we know that under Article 160(2), ‘prime minister’ is absent in the definition of ‘members of the administration’.

“So, in my view, the lawyers for Najib were blowing hot and cold here,” he added.

Hanipa noted that there were numerous cases in which the courts held that the constitution should not be interpreted in a pedantic manner.

The Sepang MP agreed with former law professor Abdul Aziz Bari’s view that the court had chosen to do so with regard to this case.

“The effect of this is that the court seems to have reduced our highest law of the land to an ordinary legislation and worse still, to a private will. It is as good as murdering the constitution,” he said.

Kuala Lumpur High Court judge Abu Bakar Jais had allowed Najib to strike out the suit filed by Mahathir, and former Umno division leaders Khairuddin Abu Hassan and Anina Saadudin, on the ground that Najib is not a public official but a member of an administration within the Federal Constitution and Interpretation Act.

Former Federal Court judge Gopal Sri Ram had said the matter should have been allowed to go for trial as the action brought by Mahathir was based on the well-established common law tort of misfeasance in public office and neither the constitution nor the Interpretation Act have any relevance to establishing who is a public officer.

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