A three-member panel comprising Justices P Ravinthran, Wong Kian Kheong and Nadzarin Wok Nordin upheld a High Court ruling, handed down on Nov 25, 2022, striking out the suit.

Najib had sued Thomas for misfeasance in public office, malicious process and negligence in the exercise of prosecutorial discretion under Article 145(3) of the Federal Constitution in relation to 1MDB and the International Petroleum Investment Company (IPIC) charges.

Ravinthran said the panel agreed with the High Court that since the criminal cases had not commenced when the civil suit was filed, the action for misfeasance, malicious process and negligence were clearly premature.

“We also find that the tort of malicious process does not exist in our law,” he said.

The court, however, disagreed with the High Court’s ruling that Thomas had immunity and his actions were non-justiciable.

“Article 145(3) of the Federal Constitution does not confer immunity to the attorney-general with respect to civil suits taken against him personally.

“The cases that were cited by the High Court do not apply as there are criminal cases where the discretion of the attorney-general was challenged,” he said.

The court ordered that Najib pay costs of RM12,000 to Thomas.

Firoz Hussein and Yudistra Darma Dorai appeared for Najib, while Alan Adrian Gomez represented Thomas.

In his lawsuit filed in 2020, Najib had sought a declaration that Thomas committed the tort of misfeasance in public office, along with RM1.9 million in special damages, said to be the costs incurred in engaging an audit team to review documents and prepare his defence in the criminal proceedings.