KUALA LUMPUR (Nov 25): The High Court on Friday (Nov 25) allowed former attorney general Tan Sri Tommy Thomas to strike out a RM1.9 million malfeasance in public office, malicious process and negligence suit filed against him by jailed former prime minister Datuk Seri Najib Razak.
The tort of malicious process is a new tort with regard to the process where one or an accused person had to undergo investigations and then a trial without an end.
Judge Datuk Ahmad Bache in his decision to strike out the suit by Najib said the former PM should have waited for the outcomes of the four ongoing criminal cases against him, which if resulted in an acquittal, only then can he file the suit.
Ahmad said the suit was premature in light of the ongoing criminal cases, and would result in a separate trial being heard not only in the criminal court but also the civil court.
The ongoing criminal cases are the 1Malaysia Development Bhd (1MDB)-Tanore trial, the 1MDB audit case for abuse of power, the money laundering case involving SRC International Sdn Bhd, a former subsidiary of 1MDB, and the International Petroleum Investment Company (IPIC) case.
With regard to the four ongoing cases, the former PM is facing 35 charges of abuse of power, money laundering, and criminal breach of trust in relation to 1MDB and SRC.
Ahmad noted that Tommy was not involved, and is no longer the AG, with regard to the four cases, and hence he ruled on the issue of the former AG having committed the torts of misfeasance and malicious process as devoid of merit and a non-starter.
“The suit is therefore not sustainable and can be considered an abuse of the court process, and should be struck out as it does not disclose reasonable cause of action,” he added.
The judge also said under Article 145(3) of the Federal Constitution, the AG, who is also the public prosecutor, is immune to legal proceedings in rare and exceptional cases, and to allow the suit to proceed at this stage when the criminal trials are still ongoing would open floodgates.
He said that Tommy as the AG had a public duty where during the course of the police and Malaysian Anti-Corruption Commission investigations, where the AG or the chambers revealed there was strong and credible evidence, it was incumbent upon him to prefer charges, and it would be considered a breach of his duty if he had failed to do so.
Issue of negligence did not arise
Ahmad added that the issue of negligence or recklessness did not arise as Tommy did not owe a duty of care directly to Najib as an accused person as he had acted professionally and fairly as the public prosecutor.
“It is interesting to note that Tommy did issue the consent [to the four criminal cases] and also did conduct the prosecution against Najib in the SRC case, albeit at the initial stage (as confirmed by parties), which was deliberately not included in these claims by the former PM for an obvious reason.
“Najib was found guilty by the High Court judge, and was affirmed by the Court of Appeal and the Federal Court, and is now serving his jail sentence. That decision is a testimony and manifestation of the fact that Tommy had made the right decision to charge Najib, and was not reckless or negligent and did not commit the tort of malfeasance or malicious process, and in so doing, and by extension, was right in preferring the 35 charges in the four cases against him,” Ahmad added.
Furthermore, the High Court judge noted that Malaysia has an adversarial system where an accused person still has the right to be proven innocent by a professional judge despite the charges laid upon him in an ongoing criminal trial.
The judge also ordered Najib to pay RM12,000 costs to Tommy.
Najib initially named Tommy and the Government in the suit, but later dropped the Government as a defendant.
He filed the suit in October last year, revolving the charges brought against him in criminal cases linked to 1MDB. He claimed that the charges are part of a “long-planned, premeditated exercise” by the then Pakatan Harapan government and Tommy, who before becoming the AG under PH had written numerous issues on the matter.
Najib was suing Thomas for misfeasance in public office, malicious process, and negligence.
Najib is presently serving 12 years' jail at the Kajang Prison, and fined RM210 million with regard to the SRC case.
In the suit on Friday, Tommy was represented by Alan Gomez and Mervyn Lai, while Datuk Firoz Hussein Ahmad Jamaluddin and Yudistra Darma Dorai appeared for Najib.