KUALA LUMPUR – Former attorney-general (AG) Tan Sri Tommy Thomas has succeeded in his bid to quash the suit filed by Datuk Seri Najib Razak over alleged misfeasance in public office for prosecuting him on charges involving the 1Malaysia Development Bhd (1MDB).
High court judge Datuk Ahmad Bache in allowing Thomas’s application said that the claim brought by Najib was obviously unsustainable and that there was no reasonable cause of action.
“This claim is scandalous, vexatious and an abuse of the court process. Therefore, the court allowed Thomas’s application to strike out the claim,” he said and ordered Najib to pay costs of RM12,000.
Judge Bache in his judgement said Najib’s cases were still ongoing with Thomas no longer the AG.
The cases were those relating to 1MDB, International Petroleum Investment Company (IPIC), abuse of power under the Malaysian Anti-Corruption Commission (MACC) Act 2009 and money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA 2001).
Justice Ahmad said the court considered the opinion that the cause of action of misfeasance in public office and the so-called malicious process were not sustainable and a non-starter because Thomas did not even conduct the prosecution of the four cases.
“The plaintiff (Najib) could file a suit if he acquits from all cases but now the cases are still pending.
“Even if Thomas had an agenda against Najib, he would not be conducting the prosecution of the plaintiff. Hence how could he be said to have committed misfeasance? Even the pleading in the suit as alluded earlier does not reveal any reasonable cause of action,” he said.
Judge Bache further said that should he allow this claim to proceed, it will open another floodgate for Najib’s remaining four cases to be tried in a civil court on a civil balance of proof even though the criminal trial for these four cases is still ongoing.
“This proceeding will be seen as a collateral attack against the four cases. In fact, these claims should not have been filed at all, before the completion of the trials of the four cases. It has also created confusion, and a transgression of jurisdictions between civil and criminal jurisdiction,” he said, adding that Najib’s application was also premature.
Bache said there was no necessity for this claim to go for a full trial and no reason for Thomas to come to court to explain.
He further said that Thomas has immunity from being sued by virtue of the discretion granted to him by Article 145 (3) of the federal constitution.
“This is because Thomas as the public prosecutor was conferred a wide discretion and hence enjoys immunity from any proceeding against him,” the judge said.
He pointed out that legal precedents still affirmed that an AG’s constitutional power under Article 145 of the federal constitution to commence or retract criminal charges, cannot be challenged in court.
The judge said Thomas was appointed as the AG cum public prosecutor on June 4, 2018, by the government of Pakatan Harapan under Tun Dr Mahathir Mohamed, not the political AG.
Lawyers Datuk Firoz Hussein Ahmad Jamaluddin and Yudistra Darma Dorai represented Najib, while Alan Adrian Gomez represented Thomas.
Thomas, through a notice of application to quash the suit, which was filed on November 18, 2021, among others stated that if Najib’s suit is continued and tried, it will disrupt the trial in the Criminal High Court of the criminal case against him.
In the suit filed on October 22, 2021, Najib claimed that the charges against him were part of a move that had been planned in advance by Thomas and was also in line with the Pakatan Harapan government’s plan at the time.
Najib, 69, claimed that he had been wrongly accused in court in the case of 1MDB, IPIC, abuse of power under the MACC Act 2009 and money laundering under the AMLATFPUAA 2001.
He is seeking a declaration that Thomas has committed misfeasance in public office and RM1.9 million in damages, including negotiation fees for the audit team to review documentation for the preparation of facts to deal with the prosecution against him. – Bernama, November 25, 2022
