PUTRAJAYA (March 20): The Federal Court on Wednesday dismissed an application brought by an individual to reinstate his suit for misfeasance in public office and negligence against the prime minister and the government. The suit was for the government’s action of withdrawing a review of the International Court of Justice’s decision (ICJ) on Pulau Batu Puteh.

Federal Court judge Datuk Harmindar Singh Dhaliwal, who led the three-member bench, ruled that the challenge brought by Mohd Hatta Sanuri, 45, does not meet the threshold set under Section 96 of the Courts of Judicature Act.

“There is no merit for the court to grant leave. This follows the issue of locus standi [legal standing] and non-justiciable is well settled as with the issues of tort of misfeasance in public office and also negligence.

“The case does not pass the threshold of Section 96 and the application is dismissed with no order as to costs,” Harmindar said.

He sat with Federal Court judges Datuk Nordin Hassan and Datuk Abdul Karim Abdul Jalil in the unanimous decision.

Mohd Hatta, through his counsel Mohaji Selamat, had posed five questions of law to be considered by the apex bench.

In civil cases, at the final appellate level in the Federal Court, leave (permission) has to be gained for the merits of an appeal to be heard.

Mohaji told the court that leave should be granted, as six months after Hatta filed the action, the government decided to form a task force to investigate Pulau Batu Puteh.

Following that, he said in a report by the task force there is an element of misfeasance, and the withdrawal of the review at the ICJ was not proper.

Mohaji further said that as a result, the present government decided to form a Royal Commission of Inquiry with regards to the matter chaired by former chief justice (Tun Md Raus Sharif).

Hence, he said the apex court should allow the merits of Hatta’s appeal to be heard as the investigations on the task force show there are elements of misfeasance.

To this Harmindar asked whether the applicant (Mohd Hatta) wanted to claim RM10 million for the action, but Mohaji did not reply.

Task force and RCI already decided by govt

Meanwhile, senior federal counsel Shamsul Bolhassan, who appeared with Ahmad Hanir Hambaly @ Arwi and Liew Horng Bin, argued that the questions posed before the bench do not pass the threshold for leave to be granted.

Shamsul said the fact that Mohaji quoted several cases with regards to locus standi and non-justiciable had already been decided, and the decision by the government to set up a task force and the RCI shows it is not the business of the applicant.

“The matter on the setting up [task force and RCI] has been decided by the government,” he said, adding the five questions posed is fact-centric and does not meet the requirements for leave to be granted.

On July 1, 2022, the High Court had allowed the PM and government to strike out the suit on the grounds that government policy was non-justiciable and also that the applicant do not have legal standing to initiate the claim. On Nov 15, 2023, the Court of Appeal had dismissed Mohd Hatta’s appeal on the High Court’s decision.

In 2018, the then Pakatan Harapan government, under then prime minister Tun Dr Mahathir Mohamad, had withdrawn an application to overturn the ICJ's ruling (which had awarded legal jurisdiction of Pulau Batu Puteh to Singapore) before the case was scheduled to be heard on June 11, 2018.

This resulted in Mohd Hatta filing the suit on May 28, 2021, on his behalf and on behalf of the more than 32 million Malaysians affected by the withdrawal of the review application, which was made without discussing and tabling it first in Parliament.

In his statement of claim, he sought an order for the defendants to provide a written explanation as to why they withdrew the review of the ICJ's decision on June 1, 2018, when it was claimed that Malaysia had strong evidence to initiate the review, which had been initiated and filed since Feb 3, 2017, by the then Barisan Nasional government.

Mohd Hatta also sought a declaration that the defendants were negligent and had committed treason, fraud, and breach of trust against all Malaysians, including the applicant, when they dropped the review bid.

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