KUALA LUMPUR (March 28): Datuk Seri Najib Razak’s misfeasance in public office, malicious process and negligence suit against former attorney general Tan Sri Tommy Thomas is not sustainable as it is the courts that determined the guilt or innocence of a person.

Judge Datuk Ahmad Bache, who allowed the striking out of Najib’s suit against Thomas, said in his 37-page grounds that Malaysia’s justice system, which the judge described as rigorous as the AG, who is also the public prosecutor, has to undergo several stages of built-in “check and balance”, will not cause or will never cause Thomas to commit the three torts as alleged.

The judge said the fate of the plaintiff (Najib) is determined by the courts and not the AG.

Ahmad said the fact that Thomas's successor, Tan Sri Idrus Harun, had continued with prosecuting the former PM of the 35 existing charges lends credence to Thomas' decision to charge Najib for the same.

“This dispelled the notion that Thomas had some political and personal agenda against Najib when he preferred the 35 charges in the four cases against him, as Idrus was not appointed by the then Tun Dr Mahathir [Mohamad] government,” he said.

Ahmad said what Najib’s lawyers had pointed out - the AG is the most powerful person by virtue of his power under Article 145(3) and that he held Najib’s liberty - is untenable and cannot hold water.

“This built-in 'check and balance' procedure/mechanism will dispel that notion and will show that, at the end of the day, the fate of the plaintiff (Najib) will be determined by the courts and not Thomas as the public prosecutor.

“It actually hinges on the strength of the evidence adduced (which was earlier gathered by the investigating agencies independently) by the public prosecutor before the trial judge,” Ahmad said in his written grounds that was made available to The Edge.

Ahmad noted that Najib had excluded seven SRC International Sdn Bhd charges in his claim of misfeasance in public office, malicious process and negligence suit, and only sticks to his ongoing 35 charges in the four cases where Thomas was earlier involved in the SRC trial.

“Lest we also forget, here the defendant (Thomas) did not even conduct the trial of the four cases, and that the trials have not started/[are] still pending (as confirmed by parties) and that Thomas had already retired/resigned and those four cases remain pending at the time this suit was filed in 2021,” he added.

The judge noted that Thomas had also averred in the striking out application that he was merely discharging his public duties in good faith within the powers conferred to him as an AG and public prosecutor, and hence he did not commit the three torts.

“Given the situation above, again this High Court ruled that the issue of Thomas committing the torts of misfeasance, malicious process and negligence is devoid of any merit and a non-starter.

“Hence with respect, the plaintiff’s claims against the defendant is eminently one that was plainly unsustainable and has no chance of success. Put it in another way, the claims should be struck out for having no cause or no reasonable cause of action to begin with, as the claims are obviously unsustainable,” Ahmad added.

It is worth noting that Najib had been acquitted of one of the charges, namely abuse of power with regards to the 1Malaysia Development Bhd (1MDB) audit trial, as judge Mohamed Zaini Mazlan found that the prosecution had failed to prove a prima facie case against the former PM.

However, the prosecution is appealing the acquittal.

Ahmad said while Najib had alleged Thomas had interfered or obstructed investigations, Najib had failed to give particulars as to how it was done, how the former AG had acted beyond his powers with malice and deliberately targeted Najib on the instructions of the then Pakatan Harapan (PH) government.

“Najib also failed to state why and how the prosecution of the 35 charges in the four cases were not in accordance with the law. Instead, it was full of narratives of his official acts and conducts in discharging his official duties, when as a public prosecutor it was the defendant’s public duty to prosecute Najib after the investigating agencies had provided him (Thomas) with all the necessary evidence following thorough investigations that revealed his (Najib's) involvement in all the 35 charges.

“On the contrary, Thomas would be failing in his duties as PP (public prosecutor) if he failed to charge Najib for those offences. As all men are equal before the law, he is to ensure that Najib did not escape the long arms of the law with impunity, just like anyone else when there was overwhelming evidence to refer charges against him,” said Ahmad.

The issue of selective prosecution or Thomas having preferred charges against Najib under the PH government does not arise.

“The fact that he has given his views regarding Najib’s culpability even before he becomes the AG/PP is immaterial as at that point of time, as a public spirited citizen, the defendant (Thomas) was concerned of those on-goings in the country especially on corruption.

“Further, the media, be it local or international, had already discussed and voiced its concern on the plaintiff’s purported involvements of the matter, especially the 1MDB fiasco that involved billions of ringgit,” Ahmad said.

For the above reasons, Ahmad ruled that Najib had failed to disclose any cause of action by virtue of the discretionary powers conferred on Thomas as an AG under Article 145(3) of the Federal Constitution.

There is no necessity, the judge said, for the suit to go for a full trial. Ahmad ordered Najib to pay RM12,000 costs to Thomas.

Najib has indicated he will appeal the striking out of this suit. 

https://www.theedgemarkets.com/node/661039