KUALA LUMPUR: The lawsuit by Datuk Seri Najib Razak against former attorney general Tan Sri Tommy Thomas for misfeasance in public office, linked to his 1Malaysia Development Bhd (1MDB) criminal charges, was a "non-starter" and had "no chance of success", says the High Court here.
Furthermore, the claim against Thomas was obviously unsustainable, it added.
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In his full grounds of judgment made available on Tuesday (March 28), Justice Ahmad Bache said that for a tort of misfeasance and malicious process to exist, Thomas must have also conducted or been involved in the prosecution and proceedings until the conclusion of Najib's trial.
Thomas, however, neither conducted nor took part in the prosecution of Najib's four 1MDB cases as some were still pending or had not even started when Thomas resigned on Feb 28, 2020.
Justice Ahmad had thrown out Najib's lawsuit on Nov 25 with RM12,000 in costs after allowing Thomas's striking out application.
The judge also said the process of bringing any suspect, such as Najib, would have to go through several stages within the criminal justice system whereby the fate of an accused would be determined not by the Public Prosecutor but by the court based on the evidence adduced.
"The Public Prosecutor enjoys immunity by way of discretion granted to him by the Federal Constitution under Article 145 (3) in the first place," he said.
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The court noted that even at the time it delivered its decision last year, there was no final determination on the 35 charges in Najib's four cases which further weakened his claims.
This was because the three causes of action Najib cited (the tort of misfeasance in public office, malicious process and negligence) required an element that the four cases must have concluded in an acquittal.
"Hence it follows that there was no necessity for these claims to go for a full trial and no reason for Thomas to come to court to explain, as the claims should be struck out ab initio (from the beginning)," Justice Ahmad said.
He also said Thomas's successor Tan Sri Idrus Harun did not withdraw the charges against Najib but instead pursued them.
This lent further credence to Thomas's decision to charge Najib, he added.
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It also dispelled the notion that Thomas had a political and personal agenda against Najib when he preferred the charges, as Idrus was not appointed by Tun Dr Mahathir Mohamad’s administration during the time of the Pakatan Harapan government, the judge added.
On Oct 22, 2021, Najib filed the suit claiming that the charges against him were part of a move that had been planned in advance by Thomas and also in line with the Pakatan government’s plan at the time.
Najib, 69, claimed he had been wrongly accused in court in the case of 1MDB, International Petroleum Investment Company (IPIC), abuse of power under the MACC Act 2009 and money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
He had sought a declaration that Thomas committed misfeasance in public office as well as RM1.9mil in damages including negotiation fees for the audit team to review documentation for the preparation of facts to deal with the prosecution against him.
Thomas then filed an application to strike out the lawsuit.
