The Federal Court’s landmark ruling that the tort of misfeasance in public office can be extended to politicians means that voters can act against Cabinet members and MPs who destabilise the administration, a lawyer says.
“It is possible for voters who send them to Parliament to seek remedy in court when they act contrary to democratic ideals,” Abdul Shukor Ahmad told FMT.
He added that aggrieved voters need not wait for a by-election or general election to punish those who abuse their positions for private interest.
“Cabinet members and MPs are entrusted to act for the wellbeing of their constituents and the nation. They would have stepped out of line if they abuse their position for ulterior motives,” said Shukor, who specialises in administrative and constitutional law.
After all, he said, the court is the last bastion for the people to seek remedy if members of the executive (Cabinet) and legislature (MPs and senators) stray from their objectives.
“So, the avenue via the court will be a sort of check and balance against misfit politicians, instead of waiting to send a strong message through the ballot box,” he said.
He was responding to speculation that certain members of Dr Mahathir Mohamad’s Cabinet and MPs, including those from the opposition, are trying to establish a “back door government” by altering the four-party Pakatan Harapan coalition that was voted into power last year.
There has also been talk of attempts to establish a new Cabinet minus DAP and a faction led by PKR president Anwar Ibrahim.
Federal Court judge Nallini Pathmanathan, who delivered the verdict of a seven-member bench on Tuesday, held that a prime minister or any other minister is a public officer under Section 5 of the Government Proceedings Act 1956.
The ruling allowed Damansara MP Tony Pua to reinstate his lawsuit against Najib Razak and the government, which was struck out by the High Court and upheld by a Court of Appeal last year.
Nallini said in the context of misfeasance in public office, ministers were public office holders as they earned their salary from the public purse and carried out their functions with a public purpose.
She said this tort served to protect the reasonable expectation of citizens that a public officer would not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions.
Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said MPs, too, could be punished if they violated their oath to preserve, protect and defend the Federal Constitution.
“They were elected to the Dewan Rakyat to champion the interests of their constituents, not to engage in illegal acts,” he said.
Syed Iskandar said the apex court verdict had also opened the possibility of litigants getting an order of mandamus to compel politicians to act according to the rule of law, or a declaration that they would uphold their oath of office. – FMT