The Prime Minister can be a 'public officer' under the common law tort of misfeasance in public office despite statutory exclusions.

[1] In January 2017, Tony Pua, the plaintiff in the High Court and the appellant here ('Tony Pua'), brought an extraordinary claim against the then (and now former) Prime Minister of Malaysia, Dato' Seri Najib bin Tun Abdul Haji Razak ('Najib Razak') and the Government of Malaysia ('Government'), premised on the common law tort of misfeasance in public office.

[2] The thrust of the claim was that the then Prime Minister, Najib Razak, had committed misfeasance in public office in relation to a sovereign fund established for the economic benefit of Malaysia and the Malaysian people, known as 1MDB. More particularly, it was alleged that the then Prime Minister had abused his public office by personally benefitting and/or profiting from the receipt of monies from the 1MDB fund, comprising public funds.

[3] In response to this claim, the defendants, both Najib Razak and the Government, sought to strike out Tony Pua's claim under O 18 r 19(1)(a), (b), (c) and (d) of the Rules of 2012 and under the inherent jurisdiction of the Court.

[4] In the High Court, the claim was struck out summarily under O 18 r 19(1)(a) for a variety of reasons. For the purposes of these appeals, the primary ground of relevance is that the former Prime Minister was not a 'public officer' or a 'person holding public office' as contemplated under the tort of misfeasance in public office.

[5] The High Court stated that it was bound by the decision of the Court of Appeal in another civil suit namely Tun Dr Mahathir Mohamad & Ors v. Datuk Seri Mohd Najib Tun Haji Abdul Razak, [2018] 3 MLJ 466 ('the Mahathir suit/ case'). In that suit, the Court of Appeal held conclusively that Najib Razak was not a 'public officer' for the purposes of the tort of misfeasance in public office.

[6] In the instant appeals, the Court of Appeal affirmed its reasoning in the Mahathir suit, and to that end only, upheld the decision of the High Court. In essence it held that as the principal constituent element under this common law tort had not been met, the action could not stand. Accordingly, the cause of action pleaded against the Government, as being vicariously liable for the former Prime Minister's actions or omissions, also failed in limine.

[7] Tony Pua appealed against these decisions which resulted in the two appeals before us, namely Appeal No: 02(i)-111-11-2018(W) against Najib Razak ('Appeal No 111') and Appeal No: 01(i)-44-11-2018(W) ('Appeal No 44') against the Government.

[8] On 5 November 2018, this Court granted leave for the following questions of law to be ventilated and adjudicated in respect of both appeals:

Leave Question 1 (in Appeal 111 against Najib Razak)

Whether a Court, in determining if the Prime Minister or any other Minister is a public officer for the purposes of the tort of misfeasance in public office, is limited by the definition of "public officer" in s 3 of the Interpretation Acts 1948 and 1967 read together with arts 132 and 160 of the Federal Constitution?

Leave Question 2 (in Appeal 44 against the Government)

Whether the Prime Minister or any other Minister is a public officer within s 5 of the Government Proceedings Act 1956 for the purposes of the tort of misfeasance in public office?

[9] In addition to the questions above, two other issues were raised during the course of the hearing of the appeal on 23 April 2019. We sought further clarification from