The attorney-general is not immune to legal action, the High Court in Kuala Lumpur ruled today.
Judicial Commissioner Vazeer Alam Mydin Meera said this in dismissing attorney-general Abdul Gani Patail's application to strike out the suits by former Commercial Crime Investigation Department director Ramli Yusuff and his lawyer Rosli Dahlan.
"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 pleadings, is anathema to modern day notions of accountability.
"I agree that deliberate abuse of power by a person holding a public office is tortious 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," Vazeer Alam said.
"This is keeping with developments in modern jurisprudence that absolute immunity for public servants has no place in a progressive democratic society," the judge added.
The AG and two other officers from the AG's Chambers were named in the respective suits filed by Ramli (left) and Rosli.
They had sought to strike out the suits on the grounds that they should be immune to such action in carrying out their prosecution powers.
Ramli had filed a RM128.5 million suit against Gani, former IGP Musa Hassan and several Malaysian Anti-Corruption Commission officers.
Rosli had filed a separate suit amounting to RM48 million against the same parties.
The two are suing them for abuse of power, malfeasance in the performance of public duty, malicious prosecution and prosecutorial misconduct, among others.
Suits not filed out of time
Judicial Commissioner Vazeer Alam also ruled that the two suits for malicious prosecution were not filed out of time as this cause of action accrued upon the determination of the final appeal.
He said that the court could not consider the period to be when Ramli or Rosli (right) were acquitted, as there were subsequent appeals against the acquittals made after this.
“As with Ramli's case, the appeals lodged by the public prosecutor were dismissed in June and in November 2011. Therefore the filing of the action on Nov 1 last year is well within the time stipulated in Section 2 of the Public Authority Protection Act,” the judicial commissioner ruled,
Vazeer Alam also allowed the two to name the MACC in their legal action, since the MACC took over from the Anti-Corruption Agency.
Ramli had sued the defendants for their claim that he was the policeman in the Copgate affair and that he had RM27 million in assets.
Subsequently, Ramli was charged with the non-disclosure of some of his assets and the case against him was thrown out.
Ramli's lawyer friend Rosli was also hauled up as a result of this.
Ramli, who was a former state police chief for Pahang and Sabah, said in his statement of claim that his relationship with Gani soured in 2006.
This was after he met then prime minister Abdullah Ahmad Badawi and recommended that former Malaysia Airlines chairperson Tajudin Ramli be prosecuted for the severe losses suffered by the company.
"But the AG decided not to prosecute Tajudin. I even told the PM then that if the AG was reluctant to prosecute Tajudin, the CCID would have the necessary resources to conduct the prosecution.
"This earned me Gani's permanent displeasure..." Ramli said in his statement of claim.
'A brave decision'
After today’s court session, Ramli commended the judge for his brave decision.
“I am not doing this for Ramli Yusuff but for the police force, some of whom have been victimised as a result of this. And I am also doing this for the serving government officers who have also been victimised.
“I am also seeking closure to an event that has affected my possible career advancement,” he said.
The RM27 million investigations had hindered his promotion to be the inspector-general of police, he added. This post was subsequently handed over to Musa Hassan.
Rosli, on commending today’s High Court decision, said abuses by the public authority have for too long been insulated by invoking the Public Authority Protection Act.
“Today, a brave judge has declared that absolute prosecutorial immunity is an anathema to the modern concept of democracy. This is to remind the public authorities that no one is above the law,” Rosli said.
Several police officers under Ramli's charge have also been prosecuted as a result of the Copgate affair and all of them have acquitted and have been reinstated to their posts during former IGP Ismail Omar's tenure.
Ramli was represented by Harvinderjit Singh, while Chethan Jethwani and Darvindeer Kaur appeared for Rosli.
Senior lawyer Cecil Abraham, Rishwant Singh and senior federal counsel Amarjeet Singh represented the defendants.