JAN 23 — Umno kicked off its general assembly on January 12 with its Youth chief Asyraf Wajdi urging his fellow party colleagues who have been charged and acquitted of corruption to haul former attorney-general Tommy Thomas to court to clear their name.

Those party leaders will have to sue Tommy Thomas for malicious prosecution.

Malicious prosecution is a tort. It means that a civil wrong has been committed by the prosecuting authority, which is expected to act in a bona-fide manner.

Public officers, including the Public Prosecutor (PP) and his deputies, can be held liable in damages for malicious, deliberate or injurious wrongdoing. There is no general statutory immunity granted to the PP or his deputies.

It is said that the notion of absolute prosecutorial immunity for the PP and his deputies, who are public officers, is anathema to the modern-day notions of accountability and the rule of law. In a legal system where the rule of law is central, no one is above the law. (See Dato’ Pahlawan Ramli bin Yusuff v Tan Sri Abdul Gani bin Patail & Ors [2015] 7 MLJ 763).

Any action for malicious prosecution, though, raises questions of difficulty. As was said by the last expatriate head of the Malaysian judiciary, Lord President Thomson, in a 1966 case:

"On the one hand there is the need to protect the reputation of the individual against unjustified attacks and his pocket against the expense of defending himself against unjustified criminal proceedings.

"On the other hand, the courts have always recognised the necessity of affording protection to persons who, whatever their real motives, assist in the administration of public justice.” (See Rawther v Abdul Kareem [1966] 2 MLJ 201)

In any such action, the plaintiff must prove at least five things and unless he does so he cannot succeed.

He must prove that the defendant — that is, the prosecuting authority — set the criminal law in motion against him. He must prove that the criminal proceedings against him terminated in his favour, that the defendant had no "reasonable and probable cause” for setting the law in motion against him and that the defendant was actuated by malice in the sense that he had a motive other than only to carry the law into effect.

What will constitute want of reasonable and probable cause and malice depends on the circumstances of the case.

Malice is a high hurdle and the most difficult part of proving malicious prosecution. Yet it is the all-important element that must be established.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.