The Court of Appeal today unanimously dismissed attorney-general Abdul Gani Patail’s appeal to strike out a RM47 million suit brought by lawyer Rosli ‎Dahlan for malicious prosecution.

 

It also dismissed Gani's appeal to strike out another suit for RM128 million filed by former Commercial Crime Investigation Department director, Ramli Yusuf‎.

 

The three member bench, led by Justice Hamid Sultan Abu Backer, ‎made the decision after hearing submissions from Gani's lawyer Cecil Abraham and Rosli's lawyer Chethan Jethwani. 

 

The other two judges were Justices Varghese George Varghese and Vernon Ong‎.

 

Rosli ( right ) and Ramli filed the suit in 2013 in relation to what is now known as the " Copgate " affair.

 

The panel further ordered Gani to pay RM25,000 costs each to Rosli and Ramli.

Abraham applied for a stay of the court's decision pending an appeal to the Federal Court. However, the panel of judges refused to grant him the stay.

The senior lawyer then applied for the trial of the case to be heard before another Kuala Lumpur High Court judge and not the judge who had previously dismissed Gani's application but this too was also dismissed by the appellate court.

“Having looked at the (KL High Court) judgment, it has passed the acid test of reasonableness (and does not warrant a change in judge),” said Justice Hamid Sultan.

With today's decision, the case will go on trial unless Gani files an appeal to the Federal Court, which Abraham has already relayed his intention.

Immunity argument dropped

Earlier, during his submission, Abraham said that the attorney-general was protected by the Public Authorities Protection Act or better known as Papa as far as legal action against him was concerned.

However, Chethan argued that Papa could not be invoked when one acted maliciously.

“Furthermore, they (the defendants) have not filed any affidavit to deny their wrongful act,” he said. Chethan was assisted by Parvinder Kaur Cheema while Ramli was represented by Harvinderjit Singh and SC Teh.

In April last year, High Court Judge Vazeer Alam Mydin Meera had dismissed Gani's ( left ) application to strike out the suit on the grounds that the AG “was not immune to legal action”.

Justice Vazeer Alam in his judgment noted 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," Justice Vazeer Alam wrote.

Justice Vazeer Alam made the judgment when he was a judicial commissioner. He has since been confirmed as a full judge.

Commenting on today's decision, Rosli asked why Gani should be afraid of going for a full trial.

“While they (Gani and the prosecution) are criticising others for delaying trials by making applications after applications, they are now doing the same thing to me with regards to my case,” the lawyer said.