KUALA LUMPUR: Datuk Seri Najib Tun Razak is applying to strike out a lawsuit by Tun Dr Mahathir Mohamad and two others against him for wrongful exercise of authority in public office.
Najib’s lawyer Datuk Mohd Hafarizam Harun said the defence team is arguing that Najib is not a public officer in his capacity as the Prime Minister and Finance Minister.
“The law in Malaysia is very clear that Najib is not a public officer under the definition of the Federal Constitution and Interpretation Act.
“The defendant is not a public officer who will satisfy the first ingredient for misfeasance, which is the person must be a public officer in public office to justify the claim,” he told reporters here after the proceedings in chambers yesterday.
Mohd Hafarizam said the plaintiffs were confusing two distinct and separate concepts of “public servant vs public officer”.
The defence team led by counsel Tan Sri Cecil Abraham is saying that Najib is a member of the administration and that Article 160 (2) of the Federal Constitution excludes members of the administration to be in the public service.
Mohd Hafarizam said Article 132 (3) of the Federal Constitution stated the public service shall not be taken to comprise the office of any member of the administration in the Federation or a state.
Mohd Hafarizam said the plaintiffs have also failed to show that Najib’s acts were done in malice, adding that the lawsuit was vexatious and an abuse of court process.
Lead counsel for the plaintiffs, Mohamed Haniff Khatri Abdulla, however, applied to the court to hear evidence from the witnesses in a trial and not to summarily strike out the suit without any hearing of merits.
Haniff said his clients have an arguable case for a few issues to be determined by the court, adding that it was enough to show losses suffered by citizens due to the acts of Najib allegedly for his interest.
High Court judge Justice Abu Bakar Jais reserved his decision on Najib’s application to strike out the suit to another date to be fixed later.
In the lawsuit filed in March last year, Dr Mahathir and two others want the High Court to order the Prime Minister to pay RM2.6bil in exemplary damages to the Government.
Dr Mahathir, former Batu Kawan Umno division deputy head Datuk Seri Khairuddin Abu Hassan and former Langkawi Wanita Umno member Anina Saadudin also want Najib to pay RM42mil in aggravated damages to the Government.
In a statement of claim, the plaintiffs claimed Najib had acted to compromise the various respective institutions involved in probing issues related to 1Malaysia Development Bhd (1MDB), to ensure that the findings and investigations on the allegations could not be concluded in a transparent manner.
Among others, they are seeking to declare that Najib has committed misfeasance in public office and breach of fiduciaries in public office by using his position as the Prime Minister, chairman of Barisan Nasional and Umno president.