Ex-AG claims Najib’s wrongful prosecution suit is 'political'

Tommy Thomas claimed that Najib Abdul Razak’s wrongful prosecution legal action against the former attorney-general was politically motivated for the lead-up to the Malacca state elections and the 15th general election.

In an affidavit in support of a bid to strike out the former prime minister’s suit, Thomas contended that the suit is baseless and not sustainable due to the AG being empowered under law to initiate, conduct and discontinue criminal prosecution.

Thomas (above) claimed that this was because Article 145(3) of the Federal Constitution empowered the then public prosecutor (PP) with this prosecutorial discretion, only with the exception of proceedings before the syariah courts.

He contended that in exercising their prosecutorial discretion, the PP (and the deputy public prosecutors or DPPs) often take into account considerations other than the merits of the case, such as public interest and whether certain proposed charges were based on archaic laws, among other factors.

“I believe the plaintiff’s (Najib) claim was filed for political reasons and for use in the campaign leading up to the Malacca state election and the next general election which must be held by the middle of 2023.

“This is evidenced by the fact that these allegations have only been raised by Najib for the first time in this claim although he was charged: in the 1MDB (RM2.28 billion corruption) case in September 2018; in the IPIC (International Petroleum Investment Corporation criminal breach of trust) case in October 2018; in the (1MDB) audit report case in December 2018; and the (SRC International) money launder case in February 2019.

“Neither was it raised by Najib, as a defence in the (RM42 million) SRC trial (to the best of my memory), which concluded on July 28, 2020, where Najib was convicted by the High Court,” Thomas claimed, pointing out the other criminal cases are still pending before the trial courts.

“The plaintiff’s (Najib) claims in this suit are unprecedented and without any legal basis. They are unsustainable in law.

“If allowed, it would result in a floodgate of civil cases against the government, the PP (and the DPPs) and all government personnel involved in the nation’s criminal justice system. That would be contrary to the national interest.

“This would cause grave inroads into the system of independence entrenched under Article 145(3) of the Federal Constitution. Criminal activity would be unchecked if DPPs become afraid of bringing charges due to a risk of opening themselves up to civil suits subsequently,” Thomas contended.

On Oct 19, it was reported that Thomas and the government filed to strike out Najib’s lawsuit on the grounds that it was a collateral attack to derail the former prime minister’s criminal court cases. 

Media reports quoted excerpts from DPP Ahmad Akram Gharib’s affidavit, which contended among others that the AG is empowered with discretion to initiate, conduct and discontinue prosecution, per Article 145 of the Federal Constitution and Section 376(1) of the Criminal Procedure Code.

Former prime minister Najib Abdul Razak

'Strong case against Najib'

Meanwhile, through Thomas’ affidavit dated Nov 24 sighted by Malaysiakini, the former AG explained that the PP’s discretion has developed over centuries in England and adopted throughout the Commonwealth.

He contended that it thus existed in Malaysia prior to Merdeka and that the Federal Constitution elevated such discretion to a constitutional status post-Merdeka.

“An entire body of case law has developed since Merdeka, with the courts consistently and uniformly determining that the PP’s discretion, pursuant to Article 145(3), is not justiciable (referring to the issue not something that can be the subject of a legal challenge before the courts).

“Further, in operational matters relating to specific, individual cases, the PP, even when he was a member of Parliament in periods after Merdeka, was not accountable to Parliament or to the media. The PP is also not accountable to the cabinet or the executive branch with regard to prosecutorial decisions.

“This was the settled position of the office of the PP when I assumed office as attorney-general on June 4, 2018.

“The discretion whether to charge (and what charges to prefer) only becomes exercisable after the PP studies the investigation papers (IPs) submitted by investigating agencies such as the police and the MACC). The PP has no control or power over the investigation process itself, which is meant to be independently carried out by such independent agencies. The PP’s office does not carry out any investigations relating to crime.

“Due to the large number of criminal charges brought across Malaysia, the vast majority of the decisions to prosecute are undertaken by some 600 DPPs stationed across Malaysia. These decisions are made without any involvement of the PP. The system is decentralised for purposes of efficiency and necessity.

“Only a few cases of public importance fall under the direct purview of the PP. I estimate that, during my tenure as PP, I was directly involved in some 20 to 30 cases,” Thomas contended.

He maintained being satisfied there was a strong case against Najib when the then AG reviewed the IPs involving the former premier’s criminal cases.

“I studied that IPs to the best of my ability, discussed them with the relevant officers in PP’s office and then honestly decided to charge Najib.

“Accordingly, the allegations in paragraphs 17 to 19 of the statement of claim (of Najib’s lawsuit) that I decided to prosecute him despite MACC having found no wrongdoings are denied.

“Neither I nor any staff from the PP’s office interfered in MACC’s investigations against Najib which resulted in the five prosecutions. The investigations were carried out independently by MACC,” Thomas contended.

On Oct 22, Najib’s legal team filed a suit against Thomas and the government over the former prime minister’s alleged wrongful prosecution for several criminal cases. 

The plaintiff contended that Thomas had committed misfeasance in public office, malicious process, and negligence.

The former premier claimed that the government is vicariously liable for the alleged acts done by Thomas.

Najib stated that Thomas’ alleged acts were in relation to criminal charges levelled against the former in relation to the 1MDB case, the International Petroleum Investment Company (IPIC) case, two cases of alleged abuse of power and money laundering under the MACC Act 2009 (collectively known as the four cases).

The former finance minister, however, stated that it does not involve charges in relation to SRC International Sdn Bhd, a former 1MDB subsidiary that later became wholly owned by the Minister of Finance Incorporated (MOF Inc).

Najib claimed that following the emergence of the then Dr Mahathir Mohamad-led Pakatan Harapan administration following the 14th general election in 2018, he was hit with 35 criminal charges linked to the four cases.

The former premier claimed, among other allegations, that the charges against him had long been planned by Thomas and the then Harapan government.

The plaintiff is seeking, among other reliefs, a declaration that Thomas has committed misfeasance in public office, over RM1.9 million, as well as general and exemplary damages. - Mkini