Public officer or public servant: a question of law, not what you think

An old question about how to lay corruption charges against people who hold public office has arisen like a ghoul from the grave in which it had apparently been buried several decades ago.

The lawyer for Khir Toyo says his client, then Selangor menteri besar and chairman of the state development corporation PKNS, does not meet the definition of public servant (as set out in the Penal Code) when he was charged with corruption in buying a plot of land on which he built a mansion said to be worth RM24mil.

On the face of it, Khir Toyo’s argument goes against accepted notions of the meaning of public servant. After all, if a menteri besar is not a public servant, who is?

Pakatan Rakyat supporters, who well remember Khir Toyo’s attempts to undermine the Pakatan Rakyat election victory in Selangor in 2008, reacted in anger to the Khir Toyo argument. He was menteri besar, he serves the public, he accepts public funds for serving the public, therefore he is a public servant, says the angry horde.

Well, the Malaysian courts agree.

In 1977, the Federal Court comprising Lord President Tun Mohd Suffian, Chief Justice Raja Azlan Shah, Federal Court judges Wan Suleiman, Chang Min Tat and Syed Othman heard an appeal in a Malacca corruption case. They quoted two precedents in English law, and held as follows:

We accept that a public officer in the context of the relevant ordinance is an officer who discharges any duty in the discharge of which the public are interested, more so if he is paid from public funds.
Federal Court judgement, PP v C.S. Tan

That’s clear enough. That’s what the layman would say about Khir Toyo, too.

But the 1977 judgment had been about whether Tan Cheng Swee, the Malacca Municipal Commissioner, met the definition of “public officer” under anti-corruption laws. (He was said to have approved plans for a housing development by a company of which he was the executive chairman.)

Khir Toyo, however, was charged under a different law, the Penal Code, and charged as a “public servant”, not as a “public officer”.

What’s the difference, the layman may ask. Aren’t they the same? Not quite. The two terms are defined differently, in two different laws.

Which definition would apply? The Federal Court discussed the two definitions in detail and that Tan Cheng Swee as Commissioner of the Malacca Municipality, qualified as a “public servant” under the Penal Code, as well as “public officer” under anti-corruption laws.

This is the meaning of ‘public officer’ under the Anti-Corruption Act

“officer of a public body” means any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a State Legislative Assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such;

» Anti-Corruption Act

This is the meaning of ‘public servant’ under the Penal Code
There are 10 specific examples (one later repealed): a military officer; a judge; court officer; jury member or assessor; prison warders, police and health officers (generally); and this —

(i) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, on behalf of Government, or to make any survey, assessment, or contract on behalf of Government, or to execute any revenue process, or to investigate, or to report on any matter affecting the pecuniary interests of Government, or to make, authenticate, or keep any document relating to the pecuniary interests of Government, or to prevent the infraction of any law for the protection of the pecuniary interests of Government, and every officer in the service or pay of Government, or remunerated by fees or commission for the performance of any public duty;
(j) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment, or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district.
» Penal Code

Khir Toyo’s lawyer wants the Appeal Court to hold that Khir Toyo as menteri besar cannot be regarded as a “public servant”.

And until the Appeal Court decides, the more interesting question is: why was Khir Toyo not charged as a “public officer” under anti-corruption laws, in which there is little ambiguity about the position of menteri besar? Instead, he was charged under the Penal Code as a “public servant”, which his lawyer now contends does not apply.

In either case, it looks like the ghost of the Tan Cheng Swee judgment is well alive and come a-haunting

Disclaimer: no legal opinion was sought for this posting. Consult your friendly neighbourhood Pakatan-aligned lawyer for further elucidation (at your own expense, of course).


4 thoughts on “Public officer or public servant: a question of law, not what you think

  1. That is the submission of Khir’s lawyer that he is not a public servant. If a particular thing is black and that thing is associated with the accused, his lawyer will always say that the thing is not black but brown.

    There it is clearly stated in the penal code that a public servant includes ” every officer in the service of the government or remunerated by fees or commission for the performance of any public duty’. Are you going to say an MB is not in the service or the government or is not remunerated by public funds? Only an idiot will say Khir Toyo as MB was not a public servant.

    • The question is whether a politician is “an officer in the service of the government”. In other words, is a politician a government servant? Secondly, a politician serves the public only in a general sense, because he is elected by the public and answerable to them. But is he a “public servant”, i.e. a civil servant who comes under the Public Services Commission? Obviously he is not that kind of public servant, he is not employed, nor paid a salary, and he does not come under the Public Services Commission. That’s the current argument and it is a valid point of view even if it does not meet your commonly accepted but very general description of “public servant”. It’s a question of whether the courts will rule that “public servant” as stated in this law should mean “public officer” as given in the other law.

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