KUALA LUMPUR (June 12): The High Court has allowed the government’s application to remove former attorney general Tan Sri Idrus Harun as a third party in former Federal Land Development Authority (Felda) chairman Tan Sri Shahrir Samad’s lawsuit, for malicious prosecution, against Idrus’ predecessor Tan Sri Tommy Thomas and others.
High Court judge Gan Techiong said that the court had initially allowed the application for leave (permission) from Thomas, who is the first defendant in the case, to bring in Idrus as a third party earlier this year after the other defendants had not contested it. However, the government, which had already been named as defendants along with Thomas, applied to remove Idrus as the third party.
Gan said there would not be any prejudice if Idrus is removed as a third party should he and the others be held liable, as the government would also be held vicariously liable.
“Since the fourth defendant, i.e. the Government of Malaysia, shall be vicariously liable if this court is to find Tommy (Thomas) and the other defendants liable to pay Shahrir, there is no basis for Tommy to be claiming any indemnity from Idrus.
“The government (taxpayer) should not be made to bear additional costs for third-party proceedings, which are unnecessary in this case. I reiterate the point that Tommy may rest assured that if this court is to find him liable to pay any compensation to Shahrir, the government shall be vicariously liable to pay Shahrir,” the judge added.
Gan said the government had employed Thomas in his official capacity as the then-AG, and there is no allegation that there would be bad faith.
“Idrus is not named by Shahrir as the co-defendant, and it is the plaintiff’s prerogative (to do so),” Gan said.
Gan reasoned that Thomas is also at liberty to subpoena Idrus to attend and testify in the trial.
“The first defendant (Thomas) should not suffer any prejudice. The second, third, and fourth defendants’ application (to remove Idrus) should be allowed, to avoid wasting costs to the government (taxpayers) of Malaysia,” the judge said.
Shahrir sued Thomas, Latheefa, and others in 2023
Shahrir had filed the malicious-prosecution suit against Thomas, former Malaysian Anti-Corruption Commission (MACC) chief commissioner Latheefa Koya, the MACC, and the government, for malicious prosecution, malicious investigation, and wrongful arrest in 2023.
This is in relation to the former Johor Bahru member of Parliament's criminal trial, where he has been charged with failing to declare to the Inland Revenue Board the RM1 million that he had received from jailed former prime minister Datuk Seri Najib Razak. Shahrir was charged in early 2020.
The trial began in July 2022. In January 2023, after hearing the testimonies of more than 20 witnesses, the prosecution dropped the case and Shahrir was granted a full acquittal after the prosecution.
The prosecution's decision came on the heels of MACC investigating officer Nurzahidah Yacop's testimony that she had received an instruction from the prosecution, with permission given by Thomas in January 2020, to charge Shahrir even when the investigation papers on the case were still incomplete.
The government has applied to set aside the third-party notice on Idrus on the grounds that according to the Government Proceedings Act 1956, the government is already vicariously liable for any wrongful act done or any neglect or default committed by any public officers. Therefore, they say that roping in Idrus, who was acting in his official capacity, is an ill-conceived act by Thomas and only serves to complicate and confuse matters.
Thomas in his reply contends that the same argument should apply to him (that, as with Idrus, he should not be named in the suit, as the government is vicariously liable for their actions). However, he stresses that if he is being held liable for preferring the charges against Shahrir in 2020, then Idrus ought to bear "greater liability" for having prosecuted the case and withdrawing the suit at such a late stage.
Thomas also says that the court ought to strike out the setting-aside application, as Idrus himself has not filed an application to set aside the third-party notice.
The MACC, Latheefa, and the government were represented by senior federal counsel Zureen Elina Mohd Dom, while Mervyn Lai and Haikaldin Mahayiddin appeared for Thomas.
Following Gan’s decision on Friday, he fixed July 8 as case management and fixed six days for hearings beginning Aug 19, along with Sept 4, 7, 9, 29 and 30 as other hearing dates.