PUTRAJAYA (July 30): Datuk Seri Najib Razak's leave (permission) application to revive his suit against former attorney general Tan Sri Tommy Thomas, for alleged misfeasance in public office, has been postponed.

This is because the imprisoned former prime minister is still recovering from a heart procedure that he underwent last week, and is unable to attend the proceedings.

A three-member apex court panel led by Court of Appeal president (PCOA) Datuk Seri Abu Bakar Jais granted the adjournment in a majority decision.

Abu Bakar said that he was inclined to give the adjournment because Najib was a party to the lawsuit and furthermore, Najib wished to be involved in the proceedings.

Earlier, the panel stood down briefly to deliberate on the postponement request by Najib’s lawyers.

Abu Bakar noted that although he could appreciate that this was "a simple request for postponement", he wanted to impress upon young lawyers and the public that individual judges are entitled to their own opinions.

"When I’m the chairman [of the bench], I may be the PCOA, but the other judges are always free to make their own decision. I want to reemphasise that is the system in our country," he said.

Apex court judge Datuk Azimah Omar, who was another member of the panel, said that she was not inclined to grant the adjournment as this application concerned questions of law and not facts, which did not require Najib’s presence.

She also took the parties involved to task, saying this was not an effective use of the court’s time.

The final member of the panel, Federal Court judge Datuk Azmi Ariffin, had no objections to the adjournment. He however added that this will be the final adjournment, and the matter should continue on the next date, regardless of Najib’s attendance. 

It should be noted that this is the first time the case has appeared before a panel. 

Najib’s application is in relation to his 2021 lawsuit against Thomas, for the charges brought against him in criminal cases linked to 1Malaysia Development Bhd (1MDB). Najib claims that the charges are part of a “long-planned, premeditated exercise” by the then-Pakatan Harapan government.

Najib was attempting to sue Thomas for misfeasance in public office, malicious process, and negligence.

The matter has never gone to full trial as the courts below have allowed Thomas’ striking out application.

In 2022, the High Court struck out the lawsuit, adding that it was premature in light of Najib’s ongoing criminal cases, and if allowed, would have resulted in a separate trial being heard not only in the criminal court but also the civil court.

The appellate court upheld the decision, but disagreed that Thomas’ position as the AG at the time made him immune from any action and his decision non-justiciable.

However, they 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.

The panel also said that the tort of malicious process does not exist in Malaysian law.

Najib then filed an application for leave, putting forth three questions of law for the court’s determination.

The questions are: 

·      Malaysian law should recognise tort of malicious process as a new legal claim in Malaysian law.
·      The AG’s conduct before and after charges are filed — even after leaving office — amounts to tort of malicious process.
·      Tort of misfeasance in public office, especially concerning an AG’s actions, depends on the final result of the criminal case.

In civil cases, an applicant must first pass the hurdle of obtaining permission from the court by showing how issues in the suit are not frivolous and vexatious.

Najib is represented by Datuk Firoz Hussein Ahmad Jamaluddin and Yudistra Darma Dorai. Thomas was represented by Alan Adrian Gomez, Mervyn Lai, and Haikaldin Mahyiddin.

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