FORMER attorney-general (AG) 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 1Malaysia Development Bhd (1MDB) funds.

High Court judge Ahmad Bache in allowing Thomas’ application said the claim brought by the former prime minister 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 allows Thomas’ application to strike out the claim,” he said and ordered Najib to pay costs of RM12,000.

Ahmad, in his judgement, said Najib’s cases are still ongoing with Thomas no longer the AG.

The cases are those relating to 1MDB, International Petroleum Investment Company (IPIC), abuse of power under the Malaysian Anti-Corruption Commission Act 2009 and money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA 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 because Thomas did not even conduct the prosecution of the four cases.

“The plaintiff (Najib) could file a suit if he is acquitted from all cases but now, the cases are still pending,” he said.

“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 earlier does not reveal any reasonable cause of action.”

He said 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 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 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 this claim to go for a full trial and no reason for Thomas to come to court to explain.

He said 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,” he 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 AG cum public prosecutor on June 4, 2018, by the government of Pakatan Harapan (PH) under Dr Mahathir Mohamed, not the political AG.

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

Thomas, through a notice of application to quash the suit, which was filed on November 18 last year, among others, stated that if Najib’s suit is continued and tried, it will disrupt the trial in the High Court of the criminal case against him.

In the suit filed on October 22 last year, Najib claimed that the charges against him were part of a move that had been planned in advance by Thomas and it was also in line with the PH 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 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, November 25, 2022.