Atorney-General Tan Sri Abdul Gani Patail.
KUALA LUMPUR: Absolute immunity for public servants has no place in a progressive democratic society, the High Court here ruled Friday.
Judicial Commissioner Vazeer Alam Mydin Meera said this in dismissing an application by the public prosecutor and 11 others to strike out a civil suit filed by former Commercial Crimes Investigation Department (CCID) director Datuk Ramli Yusuff against them and another similar application over a suit by lawyer Rosli Dahlan against the Attorney-General and 10 others.
The defence team for Tan Sri Abdul Gani Patail and two deputy public prosecutors had submitted that the claim against them could not be sustained as they enjoyed absolute immunity from prosecution.
"I am afraid that the notion of absolute immunity for a public servant, even if mala fide or abuse of power in the exercise of their prosecutorial power is alleged in the pleadings, is anathema to the modern day notions of accountability," he said.
JC Vazeer Alam said he agreed that the deliberate abuse of power by a person holding public office was wrongful and referred to as misfeasance in public office.
"Such a tortious (wrongful) act can arise when an officer, actuated by malice, for example, by personal spite or a desire to injure for improper reasons, abuses his power.
"This is in keeping with developments in modern jurisprudence that absolute immunity for public servants has no place in a progressive democratic society," he said.
He said the court was only concerned with whether facts were included in the claim and if it would have to go to trial for the plaintiff to establish his case.
"Even judicial immunity granted to judges or persons acting in a judicial capacity under Section 14 of the Courts of Judicature Act 1964 is not absolute and is subject to the requirement of good faith in the exercise of their judicial powers," he said.
Therefore, he said he was unable to accept defendants' contention that the claim against three of them was unsustainable by reason of immunity.
He also ruled that although the acts allegedly attributed to some of the defendants were committed in their capacity as officers of the then Anti-Corruption Agency (ACA), the Malaysian Anti-Corruption Commission (MACC) was the proper party to be brought in as a defendant in the civil dispute.
"I find that by virtue of Section 74 of the Malaysian Anti-Corruption Commission Act 2009, any act done or action taken by the ACA or an officer of the ACA shall be deemed to have been continued by the MACC (as its successor)," he said.
He also held that action would have to be brought in against the Inspector-General of Police (IGP) and not the Royal Malaysian Police, (PDRM) named as a defendant in both suits, as it is not a legal entity. He allowed for proper amendment in the claim.
JC Vazeer Alam set June 18 for case management.
In the RM128.5mil suit filed on Nov 1 last year, Ramli is suing Abdul Gani, former IGP Tan Sri Musa Hassan and 10 others for wrongfully charging him.
In his statement of claim, Ramli said he was appointed as the CCID director on May 2, 2006 and was indicted on Nov 1, 2007 on charges under the Penal Code and Anti-Corruption Act 1997.
He is claiming for conspiracy, false and malicious investigation, abuse of power, abuse of prosecutorial discretion, malicious prosecution and prosecutorial misconduct and public misfeasance to injure him.
In the similar suit filed by Rosli against the MACC, the Government and nine others, he is seeking for RM47mil in damages.
Counsel Chetan Jethwani and Parvinder Kaur Cheema acted for Rosli, while Harvinderjit Singh appeared for Ramli. Senior federal counsel Amarjeet Singh, lawyer Tan Sri Cecil Abraham and counsel Rishwant Singh appeared for the defendants.