A three-member bench led by Justice Ravinthran Paramaguru deferred its decision after hearing submissions from Najib’s lawyers, Firoz Hussein Ahmad Jamaluddin and Yudistra Darma Dorai, and from Thomas’s counsel, Alan Andrian Gomez.
“We will decide later. The case is fixed for case management on Oct 15,” Ravinthran said, sitting with Justices Wong Kian Kheong and Nadzarin Wok Nordin.
Najib is appealing the High Court’s decision on Nov 25, 2022 to strike out his suit which alleged that Thomas had committed misfeasance in public office by prosecuting him over the 1MDB case.
Firoz said his client was denied a fair opportunity to respond, arguing that the High Court judge based his decision on observations that were never argued by the parties, thereby preventing his client from rebutting them.
He further contended that the High Court judge had erred when he held that Thomas had absolute immunity as the AG.
“There are numerous authorities, both in Malaysia and other jurisdictions, which have held that an attorney-general can be held liable for abuse of power,” he said, adding that the case raised significant public-interest issues.
However, Gomez contended that the High Court judge had correctly struck out the claim, saying it was non-justiciable under Article 145(3) of the Federal Constitution.
He said a finding of misfeasance would require the court to assess the attorney-general’s discretion in deciding to prosecute, specifically whether the decision to prefer charges constituted an abuse of power or was undertaken with recklessness or indifference.
“These necessarily relate to the merits of the case. In any event, no particulars as to how the respondent was reckless or had abused his powers have been traversed in the statement of claim,” he said.
In his lawsuit, Najib claimed that Thomas acted maliciously in bringing charges related to the 1MDB and International Petroleum Investment Company (IPIC) cases.
The charges included abuse of power under the Malaysian Anti-Corruption Commission Act 2009, and money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
Thomas served as AG from June 4, 2018 to Feb 28, 2020.
Najib is seeking a declaration that Thomas committed misfeasance in public office, and RM1.9 million in damages, including costs for audit work done to prepare his defence.