KUALA LUMPUR: Public servants, including the Attorney-General, do not have immunity from lawsuits in a progressive democratic society, a High Court has ruled.
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 against them by former Commercial Crimes Investigation Department (CCID) director Datuk Ramli Yusuff.
He also struck out a similar application over a suit filed 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 prosecutorial immunity.
“I am afraid that the notion of absolute immunity for a public servant, even when mala fide or abuse of power in the exercise of their prosecutorial power is alleged in the claim, 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 a public office is tortious (wrongful) and is referred to as misfeasance in public office.
“Such a tortious 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.”
He said the court was only concerned with whether facts have been included in the claim and would have to go for a 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.
He ruled that the acts complained against some of the defendants were done in their capacity as officers of the then Anti-Corruption Agency (ACA). As such, he found that (its successor) Malaysian Anti-Corruption Commission (MACC) was the proper party to be brought in as a defendant in the civil dispute.
He also held that action would have to be brought against the Inspector-General of Police (IGP) and not the Royal Malaysian Police in both suits as it is not a legal entity.
JC Vazeer Alam set June 18 for case management.
In the RM128.5mil suit filed on Nov 1, 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 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 conspiracy, false and malicious investigation, abuse of power, abuse of prosecutorial discretion, malicious prosecution and prosecutorial misconduct and public misfeasance to injure him.
In a similar suit filed by Rosli against MACC, the Government and nine others, he is seeking RM47mil in damages.
Counsel Chetan Jethwani and Parvinder Kaur Cheema acted for Rosli, while Harvinderjit Singh appeared for Ramli. Senior Federal Counsel Amarjeet Singh, Tan Sri Cecil Abraham and Rishwant Singh appeared for the defendants.
The Star Online
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