KUALA LUMPUR: Prime Minister Datuk Seri Najib Razak is not a public officer and therefore the claim of tort of misfeasance over the 1Malaysia Development Berhad (1MDB) issue by Tun Dr Mahathir Mohamad and two others is unsustainable, the High Court heard today.
Datuk Mohd Hafarizam Harun, who acted for Najib, said his client is a member of the administration, and based on Article 160 (2) of the Federal Constitution, members of administration are excluded from the public services.
Hafarizam was speaking to reporters after the hearing of Najib's application to strike out a suit against him by Tun Mahathir, 91; Batu Kawan Umno vice chief Datuk Seri Khairuddin Abu Hassan, 54; and former Langkawi Wanita Umno member Anina Saadudin, 41.
He said Najib's lead counsel, Tan Sri Cecil Abraham, argued that there is a difference between public services, public office, public servants and members of administration.
"Tan Sri Cecil made the argument that members of administration are ministers, deputy ministers and political secretaries, which, therefore, includes Prime Ministers and Deputy Prime Ministers," Hafarizam said after the hearing of the case in the chambers of judge Abu Bakar Jais.
He added that Abraham also argued that the ingredients of tort of misfeasance, as claimed by the three plaintiffs, are absent.
"We could not find any ingredient that Najib is a public officer; that he had committed an act that had caused injury; and that the act by Najib was done with malice," he said.
Hafarizam said that another point raised in reply was that the plaintiffs failed to particularise, in their claim, how Najib had used his power to cause injury to them.
"According to Order 18, Rule 7, of the Rules of Courts 2012, when you bring a claim, you have to particularise your facts and particulars.
"It is our argument that in the statement of claim, the plaintiffs have not particularised how Najib used his power to cause injury to Tun Mahathir, Khairuddin and Anina.
"We say on that, the suit should be struck out due to lack of particulars," Hafarizam said.
He also said the court has reserved its judgement to a date that will be fixed later.
Meanwhile, the plaintiffs', lawyer Mohamed Haniff Khatri Abdulla, said he had argued that the case could not be struck out at this stage, and that it should be decided after a full trial.
Najib filed an application to strike out the suit filed by Tun Mahathir, Khairuddin and Anina on grounds that there is no element of tort of misfeasance, as claimed by the three plaintiffs.
On March 23, last year, the plaintiffs filed a suit against Najib over alleged abuse of power to obstruct investigation into the 1MDB issue, involving the remittance of RM2.6 billion and RM42 million into Najib's personal accounts, among others.
Tun Mahathir, Khairuddin and Anina are seeking exemplary and aggravated damages of RM2.6 billion and RM42 million, respectively, among other reliefs sought.