Another judge recused from Najib’s appeal in suit against Thomas

Another judge recused from Najib’s appeal in suit against Thomas

PUTRAJAYA: The hearing of Najib Razak’s appeal to reinstate a lawsuit brought against former attorney-general Tommy Thomas for misfeasance in public office was postponed today for the second time after an appellate judge recused herself.

Justice Faizah Jamaludin said her husband, Faiz Azmi, was involved in the recovery of 1MDB assets.

As a result, she said she was disqualifying herself “on her own volition in the interest of justice”.

“However, my husband retired as chairman of PricewaterhouseCoopers Advisory Services Sdn Bhd (PwC) more than a year ago,” she said.

Faizah, who was recently elevated to the Court of Appeal, said she also knew Najib’s lawyer Firoz Hussein Ahmad Jamaluddin and Thomas’s counsel Alan Adrian Gomez, as they had all worked for Thomas in the 1990s.

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It was reported in July 2018 that 1MDB had appointed Faiz as executive chairman to assist PwC in recovering 1MDB assets.

Earlier, Gomez said issues surrounding the justiciability of Najib’s suit, the tort of misfeasance in public office allegedly committed by Thomas, and the action in negligence had no link to the asset recovery work undertaken by PwC.

In his reply, Firoz said the perception of bias on Faizah’s part persists.

“I am compelled to make the application. However, I am not casting aspersions on the integrity and independence of the judge whom I have known for many years,” he said when making the oral application.

Following Faizah’s recusal, Justice Hashim Hamzah, who chaired the three-member bench, then fixed the appeal for case management on Dec 3 so that a new hearing date could be fixed.

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The other judge on the panel was Azmi Ariffin.

On Oct 4 last year, Justice Azizah Nawawi, who chaired a three-member bench, recused herself after revealing that her husband, Nik Suhaimi Nik Sulaiman, served directly under Thomas when Thomas 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.

Firoz then said he had been instructed by Najib to seek Azizah’s recusal.

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Gomez, appearing for Thomas, said he had no objection to Azizah helming the bench.

Azizah, who was sitting with Justices See Mee Chun and Lim Chong Fong, disqualified herself as the case was one of public interest.

On Nov 25, 2022, the Kuala Lumpur High Court allowed Thomas’s application to strike out Najib’s suit on grounds that it was “obviously unsustainable” as no reasonable cause of action existed in the first place.

Justice Ahmad Bache said the cause of action never arose since Thomas was vested with the 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” as Thomas neither conducted nor participated in the prosecution of cases which were still pending or had yet to start.

He noted that Thomas’s successor, Idrus Harun, had also 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 had carried out his duties “in line with (those) plans”.

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, and sought RM1.94 million in damages.