KUALA LUMPUR – The high court here ruled that former attorney-general (AG) Tan Sri Tommy Thomas did not arbitrarily charge Datuk Seri Najib Razak in bad faith but only did so upon receiving completed investigation papers from the investigating agencies.
Judge Datuk Ahmad Bache said only upon studying and satisfying himself of the evidence gathered, Thomas issued the consent to charge the former prime minister on all 35 charges in four cases.
The cases involved 1Malaysia Development Berhad (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).
He also said the issue of “targeting the former prime minister or targeted malice” did not arise, as it was Thomas’ duty as the public prosecutor to charge Najib.
The judge said in the present case, at the time when the suit was filed in 2021, the prosecution of the 35 charges in the four cases are still ongoing or pending, and Thomas has already resigned on February 28, 2020.
“Hence, he (Thomas) was not and will not be involved in the conduct of the proceedings of the 35 charges in the four cases in the first place, and that there was no final determination on the four cases as yet,” he said in his 37-page judgment dated February 28 in a suit filed by Najib against Thomas.
On November 25, Judge Ahmad allowed Thomas’ application to strike out Najib’s suit over alleged misfeasance in public office for prosecuting him on charges involving the 1MDB case.
The judge said to accede to the proposition that Thomas has committed all three torts or causes of action (misfeasance in public office, malicious abuse of process and negligence) in spite of his powers will also open the floodgates, whereby all actions of the public prosecutor will be questioned.
He said it was also open to public scrutiny, hence challenging the almost unfettered discretion conferred upon him (Thomas) under Article 145(3) of the federal constitution and also his deputies (DPPs), to discharge their duties without fear or favour.
“Consequently, his DPPs too will be afraid of preferring charges against suspects, even though there was overwhelming evidence due to the risk of opening themselves up to civil suits subsequently.
“Hence, this will potentially lead to a significant escalation of criminal activities in the country.
“Worst of all, it will invite an accused person to file a claim against the public prosecutor, even before the proceeding commences or before they have been acquitted like the present case before this court.
“This will obviously cause havoc and our criminal justice system will dangerously be in jeopardy,” he said.
Judge Ahmad said the public prosecutor and his DPPs will then have to come to court in a full trial to testify and to explain for each case, wasting his official time and public funds, and seriously undermining the integrity of the institution of the attorney-general or public prosecutor altogether.
He said this is against public policy and in total contravention of established procedural laws and the Criminal Procedure Code.
“Hence, this should not be allowed and the claim should be struck out, as it is frivolous, scandalous and vexatious.
“It will also set a bad and dangerous precedent whereby an accused person can file a claim against the attorney-general or public prosecutor for every acquittal,” he said.
The judge said he was of the opinion that the act of the plaintiff in filing these claims can be seen as a collateral attack on the prosecution of the 35 criminal charges, as the plaintiff is prematurely launching a civil action based on criminal charges which have yet to be determined in the criminal courts.
Judge Ahmad said the court further opined that the claim should not be filed at all before the trials of the four cases are completed.
“It is akin to putting the cart before the horse. It has also created confusion and a transgression of jurisdiction between the civil and criminal court’s jurisdiction, and this should not be allowed at all costs,” he said.
Furthermore, the court is of the considered opinion that the causes of action of misfeasance in public office and the so-called malicious process are not sustainable and a non-starter, because Thomas did not even conduct or take part in the prosecution of the four cases.
“It follows that even if Thomas had an agenda against the plaintiff (which this court disagreed), he would not be conducting the prosecution of the plaintiff.
“How could he be said to have committed misfeasance and the other torts?
“Hence, it follows that there was no necessity for these suits to go for a full trial and no reason for Thomas to come to court to explain, as the claims should be struck out ab initio,” he said.
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 that it was also in line with the Pakatan Harapan government’s plan at the time.
He is seeking a declaration that Thomas has committed misfeasance in public office as well as 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, March 28, 2023
