Court strikes out Najib’s wrongful prosecution suit against ex-AG

Tommy Thomas succeeded in his application to nullify former premier Najib Abdul Razak’s wrongful prosecution suit against the former attorney-general.

The Kuala Lumpur High Court this morning allowed the former government top lawyer’s bid to strike out the civil action without it needing to go to a full trial.

Najib’s lawsuit against Thomas is over the former finance minister’s alleged wrongful prosecution in four ongoing criminal cases, namely the RM2.28 billion 1MDB corruption case, the 1MDB audit report case, the RM6.6 billion International Petroleum Investment Company (IPIC) criminal breach of trust (CBT) case, and the RM27 million SRC International money laundering case.

The civil suit however is not over seven charges related to the RM42 million SRC corruption case (a separate case from the RM27 million SRC money laundering case), for which Najib is serving a 12-year jail sentence.

During online proceedings today, judge Ahmad Bache ordered Najib to pay RM12,000 costs to Thomas.

Plaintiff’s claims don’t hold water

In reading his broad grounds of judgment, the judge ruled that the former premier failed to provide evidence that Thomas committed misfeasance in public office, malicious process and negligence in the four court cases.

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.

The judge noted that Najib could not rely on a Federal Court ruling - regarding an appeal over the issue of former Asian International Arbitration Centre (AIAC) Sundra Rajoo’s immunity from prosecution - as that apex decision involved rare and exceptional circumstances.

Ahmad said the plaintiff’s claim that Thomas already prejudged the accused by discussing the matter in 2012 prior to the defendant’s appointment as attorney-general under the Harapan administration in 2018 - could not be sustained as Thomas then was just like any member of the public discussing issues of public interest.

The judge noted that there are checks and balances mechanisms that ensure Thomas acted within the bounds of the law when meting charges against Najib in the four court cases.

While the public prosecutor is involved in bringing charges against Najib, Ahmad said it is still up to the courts to decide whether to convict or acquit the former premier.

“In the event, if the accused (Najib) was found guilty and not satisfied with the decision of the trial judge, he can lodge an appeal to the Court of Appeal and thereafter to the Federal Court.

“Further, the judiciary always ensures that judges discharge their duties without fear or favour, are not beholden to anyone, always abide by the rule of law and be committed to their oath of office. Hence, judges are not biased in dispensing their judicial duties,” Ahmad added.

The judge pointed out that while the four court cases are still ongoing, Thomas already stepped down as attorney-general in 2020 (following the Sheraton Move that installed the Perikatan Nasional administration at the time).

“The plaintiff’s claim that the attorney-general is the most powerful person does not hold water and is not tenable as the fate of the plaintiff is by the courts based on the strength of the evidence provided by the public prosecutor.

“The doctrine of separation of power (between the executive, the legislature and the judiciary) shows that the courts are independent of the public prosecutor.

“Once (an accused is) charged, the public prosecutor must prove its case against the accused to be beyond a reasonable doubt.

“However, the accused only needs to raise reasonable doubt (in the prosecution’s case), showing the heavier burden on the prosecution to prove its case,” Ahmad said.

‘Allowing suit would set bad precedent’

The judge pointed out that not only does Najib’s suit lack a reasonable cause of action, but allowing it would open the floodgates of similar civil actions by other accused persons against a sitting or former attorney-general who is merely exercising his power under Article 145.

“It would set a bad precedent for an accused person to file an action against every attorney-general, making the attorney-general come to court and waste judicial time,” Ahmad said.

“Finally to allow this claim (Najib’s civil action) will open another floodgate ie allowing the four remaining (court criminal) cases to be tried in civil court on a civil balance of proof while the criminal trials in all the four cases are ongoing (with a higher burden of proof).

"This proceeding will be seen as a collateral attack against the four cases. In fact, these claims (Najib's civil action) should not have been filed at all, before the completion of the trials of the four cases.

"It has also created confusion, and a transgression of jurisdictions between civil and criminal jurisdiction. This application (Najib's civil suit) is also premature and an abuse of the process of this court," the judge ruled.

In essence, this court rules that it is conspicuously clear that the plaintiff’s claims on the face of it are obviously unsustainable and there were no reasonable causes of action that existed in the first place,” the judge concluded before striking out the civil action.

Najib was represented by a legal team headed by lawyer Firoz Hussein Ahmad Jamaluddin, while counsel Alan Adrian Gomez led the lawyers acting for Thomas.

The former premier’s civil action initially listed the government as a second defendant, but that was withdrawn on Sept 8, leaving Thomas as the sole defendant.

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