Tommy Thomas’ legal team sought to strike out Najib Abdul Razak’s wrongful prosecution civil suit against the former attorney-general as it was an indirect attack against the former premier’s ongoing criminal case.
However, the former finance minister’s lawyers countered that the lawsuit should be subjected to a full hearing as it involved the issue of whether Thomas committed misfeasance while in public office by deciding to charge Najib in four separate criminal cases.
These oral submissions were presented before the Kuala Lumpur High Court late this morning and afternoon during the hearing of Thomas’ bid to strike out Najib’s civil action.
Thomas’ counsel, Alan Gomez, orally submitted to judge Ahmad Bache that the plaintiff’s lawsuit was a form of collateral attack against his ongoing four criminal cases.
Under the law, a collateral attack is a form of legal action undertaken as an indirect attack to avoid the effect of other ongoing court cases.
The lawyer pointed out that the four ongoing criminal court cases against Najib were the RM2.28 billion 1MDB corruption case, the 1MDB audit report case, the RM6.6 billion International Petroleum Investment Company (IPIC) criminal breach of trust (CBT) case, and the RM27 million SRC International money laundering case.
The 1MDB graft and audit report cases are being subjected to full ongoing trial by the criminal courts, while the other two criminal cases have yet to go for a full trial.
Najib is currently serving a 12-year jail sentence at the Kajang Prison over the RM42 million SRC corruption case. However, he was allowed by prison authorities to attend today’s civil court hearing.
“To allow this claim to proceed, would be to try the facts of all four cases on a civil balance of proof while the criminal trials (with a higher burden of proof via proof beyond reasonable doubt) in all four remaining cases are ongoing.
“This is a collateral attack against the four cases and an abuse of this honourable court’s process,” Gomez said.
The lawyer also contended that nowhere in the plaintiff’s statement of claim did Najib provide details on how Thomas had allegedly prejudged Najib before the charges were brought to court.
Gomez also claimed that civil action was not the correct mode for Najib in the matter, as any alleged grievance over the decision to charge the latter would have been better done through a judicial review before the civil courts.
Wrongful conduct as AG
However, Najib’s counsel Firoz Hussein Ahmad Jamaluddin countered that the issue of Thomas’ alleged wrongful conduct as then AG is not suitable to be dealt with via this striking-out bid.
The lawyer said the civil action was not a collateral attack on the criminal charges faced by Najib.
“We are attacking (via the civil action) the conduct of Thomas as then AG and whether or not the facts as disclosed provided a basis for arguing and establishing there was total misfeasance or abuse of process,” Firoz told the court.
The lawyer then pointed out that the reason the plaintiff withdrew the civil action against the government over the same matter was that the root of the civil action was actually Thomas’ alleged wrongful conduct as then AG.
Earlier this morning, before the judge, Firoz informed that Najib had withdrawn the wrongful civil action suit against the government, leaving Thomas as the sole defendant.
“We withdrew (the civil action against the government), as our grouses were not with the government as the government has no role in this.
“We are complaining about the individual who then held the public office who then had abused his position,” he said in reference to Thomas.
Firoz then focused a large part of his oral submissions today on the alleged bias exhibited by Thomas against Najib, as allegedly shown in the former government top lawyer’s memoir ‘My Story: Justice in the Wilderness’, published last year.
He then referred to portions of the book allegedly showing Thomas’ bias, such as paragraphs that purportedly showed the former AG already harbouring a bias against Najib back between 2008 and 2012.
The lawyer referred to a portion of the memoir on the matter of the Terengganu Investment Authority (TIA).
TIA was a Terengganu state-owned entity that later transformed into 1MDB when fully acquired by the federal government via the Minister of Finance Incorporated (MOF Inc) in late 2009.
“Between 2008 and 2012, he (Thomas) already formulated in his mind that Najib and Jho Low perpetrated a massive fraud even before he became AG.
“Can a prosecutor have such a mindset?
“He has prejudged his mind and already perceived Najib as a fraudster,” he said.
Firoz was referring to the time when Thomas was then a long-standing civil court lawyer, as well as to fugitive businessperson Low Taek Jho, who was sought by Malaysian authorities over the 1MDB affair.
At the end of proceedings late this afternoon, Ahmad set Oct 21 for further hearing of the striking-out bid.
On Nov 19 last year, it was reported that Thomas and the government filed applications 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 deputy public prosecutor Ahmad Akram Gharib’s affidavit, which contended, among others, that the AG is empowered with discretion to initiate, conduct and discontinue prosecution, as per Article 145 of the Federal Constitution and Section 376(1) of the Criminal Procedure Code.
However, in a counter-affidavit later, Najib claimed that the striking-out bid was an attempt to block the court from hearing about the alleged wrongdoings perpetrated against him.
Previously, in an affidavit in support of the striking-out application, Thomas claimed that Najib’s suit was politically motivated due to the lead-up to the Malacca state election as well as the upcoming 15th general election.
Thomas had also contended that as the then attorney-general and public prosecutor, his discretion to institute or discontinue criminal proceedings is non-justiciable or not a matter that can be challenged in court, courtesy of Article 145 (3) of the Federal Constitution.
On Oct 22 last year, Najib’s legal team filed a lawsuit against Thomas and the government over the former prime minister’s alleged wrongful prosecution of several criminal cases.
The plaintiff contended that Thomas had committed misfeasance in public office, malicious process, and negligence.
The former prime minister claimed that the government was vicariously liable for Thomas’ alleged acts.
Four cases
Najib stated that Thomas’ alleged acts were in relation to criminal charges levelled against the former in relation to the 1MDB case, the 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.
Najib claimed that following the emergence of the then Dr Mahathir Mohamad-led Pakatan Harapan administration after the 14th general election in 2018, he was hit with 35 criminal charges linked to the four cases.
He also 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, more than RM1.9 million, as well as general and exemplary damages. - Mkini
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