PUTRAJAYA: The hearing of Najib Razak’s appeal arising from a suit brought against former attorney-general Tommy Thomas for misfeasance in public office has been postponed after a Court of Appeal judge recused herself.
At the outset of today’s proceeding, Justice Azizah Nawawi, who chaired a three-member bench, disclosed that her husband, Nik Suhaimi Nik Sulaiman, served directly under Thomas when he was the attorney-general.
Thomas held office between June 2018 and February 2020.
Azizah asked if any of the parties had objections to her presence on the bench.
Lawyer Firoz Hussein Ahmad Jamaluddin, who appeared for Najib, said he had been instructed by his client to seek Azizah’s recusal, but did not offer any reason.
Lawyer Alan Adrian Gomez, appearing for Thomas, said he had no objection to Azizah helming the bench.
“But we want to know why the appellant (Najib) wants to recuse Your Ladyship (Azizah),” he said, adding that the test to disqualify a judge is whether there is “real danger of bias” in the case.
In reply, Firoz said he did not want to embarrass Azizah by providing a reason.
Azizah, who was sitting with Justices See Mee Chun and Lim Chong Fong, then disqualified herself.
“I am minded to recuse myself as my husband worked directly under Thomas. Moreover, this is a public interest case,” she said.
Last year, High Court judge Ahmad Bache allowed an application by Thomas to strike out Najib’s suit on grounds that it is “obviously unsustainable” as no reasonable cause of action existed in the first place.
Ahmad said the cause of action never arose since Thomas was vested with discretionary powers and protection accorded to him in his capacity as attorney-general under Article 145(3) of the Federal Constitution.
He said the process of bringing someone like Najib to justice would have gone through several stages within the criminal justice system.
Ahmad also said the tort of misfeasance in public office was a “non-starter” because Thomas neither conducted nor participated in the prosecution of cases which are still pending or have yet to start.
He noted that Thomas’s successor, Idrus Harun, also did not withdraw the charges, but pursued the cases.
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, in power between May 2018 and February 2020.
He alleged that Thomas 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 matters.
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