PUTRAJAYA (Oct 4): Court of Appeal (COA) judge Datuk Azizah Nawawi has recused herself from hearing former prime minister Datuk Seri Najib Razak's appeal in his RM1.9 million malfeasance in public office suit against former attorney general Tan Sri Tommy Thomas.

Azizah recused herself as her husband Datuk Nik Suhaimi Nik Sulaiman was the head of the Attorney General's Chambers' (AGC) Appellate and Trial Division when Thomas was the AG.

The appellate court judge, who chaired the three-member panel, voluntarily made the disclosure at the start of the proceedings on Wednesday.

"I would like to make a disclosure. During the time when the respondent was the AG, my husband was then the head of the Appellate and Trial Division of the AGC," she said, asking if the parties had objections to her hearing the matter.

Thomas served as the AG from June 2018 to February 2020.

Najib's counsel Datuk Firoz Hussein Ahmad Jamaluddin then sought instructions from his client, who asked for the judge's recusal. He later added that they did not cast any aspersions on the judge.

"We thank your ladyship for [the] disclosure. We would respectfully ask [your ladyship] to recuse yourself," Firoz said.

Alan Gomez, who represented Thomas, then said that they had no objections for Azizah to continue hearing the matter, and asked on what grounds was the plaintiff asking for a recusal.

"One must not take these things lightly. I have not heard any grounds for a real danger of bias," Gomez said.

However, Azizah said that as this is a matter of public interest, it is best to have a higher threshold for the issue.

"I'm minded to recuse myself from the case, as my husband was directly under [then] AG Thomas, and on the basis this is a public interest matter, we better have a higher threshold on the matter," the judge said.

The others on the panel on Wednesday were COA judges Datuk See Mee Chun and Datuk Lim Chong Fong.

Following this, a case management will be set at a later time for a new hearing date.

Najib is appealing against the High Court's decision in November last year, which allowed Thomas' bid to strike out the lawsuit without the matter going to full trial.  

High Court judge Datuk Ahmad Bache said Najib's claims against Thomas were unsustainable, and there were no reasonable causes of action in the first place.

Ahmad said that the ex-prime minister should have waited for the outcome of his ongoing criminal cases. If those resulted in an acquittal, then Najib could file this civil suit.

He added that the suit was premature in light of Najib's ongoing criminal cases, and would result in a separate trial being heard not in the criminal court but the civil court.

At present, Najib faces three pending criminal trials — the 1Malaysia Development Bhd (1MDB)-Tanore trial, the RM27 million money laundering case involving SRC International Sdn Bhd funds, and the RM6.6 billion criminal breach of trust case involving funds to the International Petroleum Investment Company (IPIC).

The 1MDB-Tanore trial is still at the prosecution's case. The other two cases have yet to begin, but the former prime minister has sent letters of representation to review the charges in both cases.

Najib filed the suit against Thomas in October 2021, revolving around the charges brought against him in criminal cases linked to 1MDB. He claims that the charges are part of a “long-planned, premeditated exercise” by the then Pakatan Harapan government.

The ex-prime minister was suing Thomas for misfeasance in public office, malicious process, and negligence.

Thomas then applied to strike out the suit.

Read also:
High Court allows ex-AG Tommy Thomas to strike out Najib's suit over malfeasance in public office, malicious process and negligence
Najib’s guilt is determined by the court not AG, judge says
Najib files representation to AGC to drop RM27m SRC money-laundering charges
Najib sends second letter of representation in IPIC case, trial postponed to Sept