PUTRAJAYA (Jan 13): The Court of Appeal on Tuesday dismissed Datuk Seri Najib Razak’s appeal to reinstate his RM1.9 million misfeasance and negligence suit against former attorney general (AG) Tan Sri Tommy Thomas.
Judge Datuk P Ravinthran, who led the bench, said while the court disagreed that Thomas’ position as the AG at the time was immune of any action and his decision non-justiciable, the panel found that there was no misfeasance in his conduct as Thomas had not led the prosecution of Najib in the four cases and the criminal cases are still ongoing.
“With respect to the issue of immunity and justiciability, we disagree with the High Court decision, as Article 145 (3) of the Federal Constitution does not confer immunity to the AG with respect to civil suits taken against him personally.
“The cases that were cited by the High Court do not apply as there are criminal cases where the discretion of the AG was challenged,” Ravinthran said.
However, the judge said the bench agreed with the High Court decision that since the criminal cases had not commenced when the instance of the civil suit was filed, the action for misfeasance, malicious process and negligence are clearly premature.
“This follows [that] Thomas is not leading the prosecution in the cases and that the cases are ongoing. We also find that the tort of malicious process does not exist in our law,” the judge added.
Ravinthran, sitting with judges Datuk Wong Kian Kheong and Datuk Nadzarin Wok Nordin, said Najib filed the suit in 2020 after facing 35 criminal charges, which the former prime minister claimed were brought with ill intent following comments made by Thomas before he became the AG in June 2018.
The 35 charges stem from Najib’s SRC International Sdn Bhd charges where he had already been found guilty and is presently serving his six years jail sentence. He was also fined RM50 million.
The former Pekan member of Parliament was also found guilty of all 21 charges of abuse of power and money laundering of RM2.28 billion of 1Malaysia Development Bhd (1MDB) funds last month. He was sentenced to another 15 years jail and fined RM11.38 billion. He has filed an appeal against the conviction.
He was acquitted in the audit tampering of 1MDB accounts with former company president Arul Kanda Kandasamy.
However, he was granted a discharge not amounting to an acquittal to the six counts of criminal breach of trust to RM6.6 billion of government funds to settle International Petroleum Investment Corporation (IPIC) debt, a charge he had faced with former Treasury secretary general Tan Sri Mohd Irwan Serigar.
Najib was also given a discharge not amounting to an acquittal to the RM27 million SRC International money laundering charges.
However, the court ruled that Najib’s claims of misfeasance and negligence by Thomas in prosecuting him were unfounded, and dismissed the appeal.
The bench also directed Najib to pay costs of RM12,000 to Thomas.
When met outside the court, Najib’s counsel Datuk Firoz Hussein Ahmad Jamaluddin, who appeared with Yudistra Darma Dorai, said they would seek the former PM’s directions on whether to seek leave to appeal before the Federal Court.
Thomas was represented by counsel Alan Adrian Gomez, Mervyn Lai and Haikaldin Mahyiddin.
The Kuala Lumpur High Court had struck out Najib’s suit in November 2022.
Then High Court judge Datuk Ahmad Bache said the former PM should have waited for the outcomes of his four ongoing criminal cases before filing the suit, as he could only do so if acquitted.
Ahmad had 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.