High Court rules ex-AG Thomas did not charge Najib in bad faith

The Kuala Lumpur High Court has ruled that former attorney-general Tommy Thomas did not arbitrarily charge Najib Razak in bad faith but only upon receiving completed investigation papers from the investigating agencies.

Judge Ahmad Bache said only upon studying and satisfying himself of the evidence gathered did Thomas issue the consent to charge the former prime minister with 35 charges in four cases.

The cases involved 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.

Bache also said that 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 at the time that the suit was filed in 2021, the prosecution of the 35 charges in the four cases were still ongoing or pending, while Thomas had resigned on Feb 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 there is no final determination on the four cases as yet," he said in his 37-page judgment dated Feb 28 in a suit filed by Najib against Thomas.

On Nov 25 last year, Bache 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 had committed all three torts or causes of action (misfeasance in public office, malicious abuse of process and negligence) in spite of his powers would also open the floodgates whereby all actions of the public prosecutor would be questioned.

He said it would also be open to public scrutiny, challenging the almost unfettered discretion conferred upon Thomas under Article 145 (3) of the Federal Constitution and his deputies to discharge their duties without fear or favour.

"Consequently, his deputy public prosecutors, too, would be afraid of preferring charges against suspects even though there might be overwhelming evidence, due to the risk of opening themselves up to civil suits. 

"This would potentially lead to a significant escalation of criminal activities in the country.
 
"Worst of all, it would invite an accused person to file a claim against the public prosecutor even before the proceeding commences or before they have been acquitted such as the present case before this court. 

"This would obviously cause havoc and our criminal justice system would be in jeopardy," he said.

Bache said the public prosecutor and his deputies would then have to come to court in a full trial to testify and to explain 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 was against public policy and in total contravention with 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 could be seen as a collateral attack on the prosecution of the 35 criminal charges as the plaintiff was prematurely launching a civil action based on criminal charges which have yet to be determined in the criminal courts. 

Bache 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 courts' jurisdiction and this should not be allowed at any cost," he said.

He said the court was of the considered opinion that the causes of action of misfeasance in public office and the so-called malicious process were not sustainable and a non-starter as Thomas had not conducted or taken part in the prosecution of the four cases. 

"It follows that even if Thomas had an agenda against the plaintiff (to which this court disagreed), he would not be conducting the prosecution of the plaintiff.

"How could he be said to have had committed misfeasance and the other torts? Hence, it follows that there is no necessity for this suit 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 Oct 22, 2021, Najib claimed that the charges against him were part of a move that had been planned in advance by Thomas, in line with the Pakatan Harapan government's plan at the time.

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.