Justice Ahmad Bache said the cause of action never arose since Thomas was vested with discretionary powers and protection accorded to him in his capacity as AG.
“The charges were not preferred arbitrarily but based on the strength of the evidence gathered from the independent investigations,” said Ahmad in his 36-page judgment as to why he allowed Thomas’s application to strike out the former prime minister’s suit.
Ahmad said the process of bringing someone like Najib to justice would have gone through several stages within the criminal justice system.
“The fate of an accused will be determined not by the AG and public prosecutor but by the court based on the evidence adduced,” he said in the judgment released today.
The judge said the AG and public prosecutor also enjoyed immunity in respect of the discretion granted to him under Article 145(3) of the Federal Constitution.
Ahmad said the tort of misfeasance in public office was a “non-starter” because Thomas neither conducted nor participated in the prosecution of the four cases which are still pending or have yet to start.
The judge noted that Thomas resigned from office on Feb 28, 2020, but Najib filed his suit in 2021.
He said Najib’s case was further weakened by the fact that even when the court delivered its ruling to strike out the suit on Nov 25 last year, no final determination had been made on 35 charges in the four cases.
Ahmad also disagreed that Thomas had an agenda against Najib. In any event, Thomas was not prosecuting Najib himself, the judge added.
“The claims against (Thomas) are obviously unsustainable and should be struck out,” the judge ruled, adding that there was no chance of it being successful since Thomas enjoyed immunity from legal action.
He also said there was no necessity for the suit to go to full trial and no reason for Thomas to come to court to explain himself.
Ahmad noted that Thomas’s successor, Idrus Harun, also did not withdraw the charges but pursued the cases.
“This dispels the notion that the defendant had some political and personal agenda against the plaintiff,” he added.
The Court of Appeal has fixed Oct 4 to hear Najib’s appeal to revive his suit.
In the suit, Najib claimed that the 1MDB-related criminal charges brought against him were “part of a long-planned, premeditated exercise” orchestrated by the former Pakatan Harapan government which was in power between May 2018 and February 2020.
He alleged that Thomas, who was appointed AG on June 4, 2018, carried out his duties “in line with (those) plans”.
In his suit, Najib claimed that Thomas filed a total of 35 charges in the four cases, including in connection with 1MDB and International Petroleum Investment Co (IPIC) matters.