The High Court should not have relied on written legislation or the Federal Constitution in its decision to strike out the misfeasance in public office suit filed by Dr Mahathir Mohamad and two others against Prime Minister Najib Abdul Razak.

According to president of the Malaysian Bar George Varughese explained that tort of misfeasance in public office is derived from British common law, which is unwritten but fully applicable in Malaysia.

"The action was therefore not brought under the Federal Constitution or any written legislation, and the High Court should therefore not have relied on either of these in determining whether the prime minister is a public officer.

"The nature of the powers of the office of the prime minister ought to have been examined to determine whether that office qualifies as a public office under common law," said Varughese in a statement today.