Ragunath Kesavan said a healthy democracy requires that the judiciary function as the final bastion of individual rights against the government.
“A functioning and independent judiciary requires judges to make hard decisions, regardless of the repercussions or backlash from society or the government.
“Decisions must be made based on the rule of law, irrespective of who is in power,” he told FMT.
He was responding to the Federal Court’s landmark ruling last week that the tort of misfeasance in public office can be applied to politicians. The ruling also reversed the verdicts of two High Court judges and two Court of Appeal benches.
Ragunath said other Commonwealth countries had long since accepted the tort, developed in the UK.
He added however that the apex court had made no criticism of the High Court and Court of Appeal decisions in what he called “clear-cut matters”.
Federal Court judge Nallini Pathmanathan, who delivered the verdict of a seven-member bench, held that a prime minister or any other minister is a public officer under Section 5 of the Government Proceedings Act 1956.
Nallini said in the context of misfeasance in public office, ministers were public office holders as they earned their salary from the public purse and carried out their functions with a public purpose.
The ruling allowed Damansara MP Tony Pua to reinstate his 1MDB lawsuit against ex-prime minister Najib Razak and the government, which was struck out by the High Court in October 2017 and upheld by a Court of Appeal last year.
High Court judge Rohana Ismail, who struck out Pua’s suit, said he lacked the legal capacity as a taxpayer to sue 1MDB and that she was bound to follow a Court of Appeal ruling.
Former opposition leader and current prime minister Dr Mahathir Mohamad and former Umno divisional leader Khairuddin Abu Hassan were the first to file the suit against Najib in March 2017 for allegedly abusing his position in the 1MDB matter.
High Court judge Abu Bakar Jais struck out the suit a month later on grounds that Najib was a member of the administration under the Federal Constitution and not a public officer, unlike civil servants.
Mahathir and Khairuddin lost their appeal in the Court of Appeal in August 2017 while a Federal Court bench chaired by then-chief justice Raus Sharif refused them leave to hear the merits of the case.