Ex-AG Thomas wins bid to quash Najib's suit

Former attorney-general Tommy Thomas has succeeded in his bid to quash the suit filed by Najib Razak over alleged misfeasance in public office for prosecuting him on charges involving 1MDB.

High Court judge Ahmad Bache, in allowing Thomas’s application, said 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’ application to strike out the claim," he said, ordering Najib to pay costs of RM12,000.

Ahmad in his judgement also said that Najib’s cases were still ongoing with Thomas no longer the attorney-general.

The cases are 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.

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 as Thomas had not even conducted 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 had committed misfeasance? Even the pleading in the suit as alluded to earlier does not reveal any reasonable cause of action," he said.

Ahmad said that should he allow this claim to proceed, it would 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.

Ahmad said there was no necessity for the claim to go for a full trial and no reason for Thomas to come to court to explain.

He also 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.

Ahmad pointed out that legal precedents still affirmed the fact that an attorney-general’s constitutional power under Article 145 of the Federal Constitution to commence or retract criminal charges, is not one that can be challenged in court.

He said Thomas was appointed as the attorney-general cum public prosecutor on June 4, 2018, by the government of Pakatan Harapan under Dr Mahathir Mohamed, not the political AG.

Lawyers Firoz Hussein Ahmad Jamaluddin and Yudistra Darma Dorai represented Najib while Alan Adrian Gomez appeared for Thomas.

Thomas, through a notice of application to quash the suit, which was filed on Nov 18, 2021, stated among others that if Najib's suit was continued and tried, it would disrupt the trial in the High Court of the criminal case against him.

In the suit filed on Oct 22, 2021, Najib claimed that the charges against him were part of a move planned in advance by Thomas and 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 Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act.

He sought a declaration that Thomas had committed misfeasance in public office, as well as RM1.9 million in damages, including negotiation fees for the audit team to review the documentation for the preparation of facts to deal with the prosecution against him.