THE High Court ruled that former attorney general Tommy Thomas did not charge Najib Tun Razak in bad faith; he only did so upon receiving completed investigation papers from the investigating agencies. 

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

The cases related to 1Malaysia Development Berhad (1MDB), International Petroleum Investment Company, 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. 

He also said the issue of “targeting the former premier or targeted malice” did not arise as it was Thomas’s duty as the public prosecutor to charge Najib. 

The judge said at the time the suit was filed in 2021, the prosecution of the 35 charges in the four cases was still ongoing or pending and Thomas had 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 there was no final determination on the four cases as yet,” he said in his 37-page judgment dated February 28.  

On November 25 last year, Judge Ahmad allowed Thomas’s application to strike out Najib’s suit over alleged misfeasance in public office by prosecuting him on charges related to 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) would open the floodgates for questioning of the public prosecutor’s every action. 

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

“Consequently, his DPPs too will be afraid of preferring charges against suspects even though there is 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 deputies would then have to appear in court to explain each case, wasting 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/public prosecutor for every acquittal,” he said. 

The judge said he believed 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 charges that were yet to be determined in the criminal courts.   

Judge Ahmad said the claim should not have been filed at all before the trials of the four cases were 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 any cost,” 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, 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 was no necessity for these suits to go for full trials 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 asserted that the charges against him were part of a move planned by Thomas in line with the Pakatan Harapan government’s aims at the time. 

He is seeking 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 documentation for the preparation of facts to deal with the prosecution against him. – Bernama, March 28, 2023.