Federal Court dismisses Dr Mahathir's bid to review public office misfeasance suit against Najib

PUTRAJAYA (July 7): The Federal Court here today dismissed former prime minister Tun Dr Mahathir Mohamad and the former Batu Kawan Umno vice-chief’s application to review a previous court ruling in their misfeasance of public office lawsuit against ex-premier Datuk Seri Najib Razak.

Dr Mahathir and Datuk Seri Khairuddin Abu Hassan sought to review the earlier decision of the Federal Court which disallow their application for leave to appeal against the High Court and Court of Appeal's decisions which struck out their lawsuit.

A three-member bench led by Chief Judge of Malaya Tan Sri Azahar Mohamed, in a unanimous decision today, said the case was not an exceptional case for the court to exercise its review power.

“In our opinion, the present application does not meet the strict requirements under Rule 137 of the Rules of the Federal Court 1995,” he said.

Justice Azahar said a case of bias was not made up.

“We did not see any miscarriage of justice,” added Justice Azahar, who presided with Federal Court Judges Datuk Zabariah Mohd Yusof and Datuk Hasnah Mohammed Hashim.

He also ordered the applicants to pay RM30,000 costs.

Dr Mahathir and Khairuddin sued Najib on March 23, 2016, accusing Najib of having committed misfeasance in public office and acting in breach of his fiduciary duty over the management of sovereign investment fund 1Malaysia Development Bhd (1MDB).

On April 28, 2017, the High Court allowed Najib's application to strike out the suit, ruling that the prime minister was not a public officer but a member of the administration.

On Aug 30, 2017, the Court of Appeal dismissed the appeal brought by Dr Mahathir and Khairuddin.

Dr Mahathir and Khairuddin could not proceed with their appeal in the Federal Court, in their bid to reinstate the suit, as the Federal Court three-man bench led by former chief justice Tun Raus Sharif refused to grant them leave to appeal on Feb 27, 2018.

In today's proceedings, Lawyer Haniff Khatri Abdulla, appearing for Dr Mahathir and Khairuddin, submitted that the decision of the earlier Federal Court panel — to dismiss the leave to appeal application as well as the application for recusal of Raus — was unfounded.

He argued that Raus should have disqualified himself from hearing the leave to appeal application because Dr Mahathir had filed a judicial review to challenge the validity of Raus' appointment as an additional judge after he reached the mandatory retirement age of 66 years.

Raus, however, did not recuse himself and instead went ahead to hear the leave to appeal application.

Lawyer Datuk Wira Mohd Hafarizam Harun said the subject matter was academic as the Federal Court had already decided on a similar issue in the case involving Damansara Member of Parliament Tony Pua Kiam Wee against Najib.

He said the review was only for limited and exceptional circumstances, and the applicants' case did not fit into these circumstances.

Mohd Hafarizam said the decision by the previous Federal Court panel not to recuse Raus from hearing the leave to appeal application was not bias and was a matter of discretion of the court.

Senior federal counsel S Nakunavathy held a watching brief for the government.