This article first appeared in The Edge Malaysia Weekly on May 2, 2022 - May 8, 2022
FOLLOWING the filing of the petition of appeal at the Federal Court last week by Datuk Seri Najib Razak’s lawyers to set aside his conviction in the SRC International Sdn Bhd case, will an appeal hearing be fixed in the coming weeks?
Significantly, the records of appeal were finally agreed upon by both the prosecution and, more importantly, the defence earlier in April, leading to the filing of the petition by the defence after an extension of time was granted.
The prosecution and defence will now have to file their written submissions, following which a hearing date will be fixed.
Najib, who will turn 69 in July, was found guilty by the High Court on July 28, 2020, of abusing his power in the issue of government guarantees for two loans of RM2 billion each to SRC by Retirement Fund Inc (KWAP) in August 2011 and February 2012.
The former Umno president and Pekan member of parliament was also convicted of three counts of criminal breach of trust of the RM42 million that entered his bank accounts from SRC and another three counts of money laundering of the same amount between Dec 26, 2014, and Feb 10, 2015.
The convictions gave Najib the distinction of being the highest ranking politician in the country to be found guilty of a criminal offence in court. The High Court sentenced him to 12 years’ jail and a fine of RM210 million. The High Court’s decision was upheld by the Court of Appeal last Dec 8, resulting in a final appeal to the apex court.
If the criminal trial originated at the High Court, the convicted felon is allowed two levels of appeal, namely the Court of Appeal and, finally, the Federal Court.
The Court of Appeal, in its decision to dismiss Najib’s appeal, was critical of the enormous losses suffered by SRC — the wholly-owned subsidiary of state-owned 1Malaysia Development Bhd (1MDB). It observed that the entity — set up to safeguard the country’s interests in critical areas, for instance, alternative energy — had morphed into a national embarrassment due to the monies lost. In the case of SRC, the whereabouts of the RM4 billion KWAP loan remain a mystery.
However, Najib had previously indicated his wish for a Queen’s Counsel (QC) to argue his appeal at the apex court.
A QC from the Commonwealth has to gain admission or leave (permission) from the court to practice in Malaysia before he or she is allowed to argue or submit in the appeal.
Najib’s lead counsel who led the defence at the trial and appeal at the Court of Appeal, Tan Sri Muhammad Shafee Abdullah, has until the end of May to file an application for a QC.
That application will have to be filed at the High Court and possibly be heard in June. Should the application fail, an appeal can be made to the Federal court.
Only after this matter is decided can a hearing date for the SRC appeal be fixed.
Lawyer N Surendran, formerly Padang Serai MP and PKR member, says it is the right of an accused person to file any application in court, including for admission of a QC.
“But it is for the court to decide if he has fulfilled the legal principles governing such an application,” he tells The Edge.
Sepang MP, Amanah’s Mohamed Hanipa Maidin, said he does not think the rakyat is questioning Najib’s legal right to apply for a QC. “What puzzled the rakyat is this, is his current senior lawyer [Shafee] not good or competent enough so much so Najib has to engage a QC? Is the appeal too complicated?” the former deputy de facto law minister asked.
“In my view, like it or not, Najib can’t run away from the following perception that his legal move of engaging a QC would be construed as part of a delaying tactic. Whether such a perception is legitimate or otherwise is immaterial. After all, being a seasoned politician, he should be fully aware that perception matters in politics,” he said.
Criminal lawyer Rafique Rashid Ali was reported to have said that Najib has until the end of May to file his application for a QC and this is clearly a tactic to delay the hearing of the substantive appeal now lodged at the Federal Court.
“On 25th April, he filed a petition of appeal. The filing of a petition indicates that all the records of appeal are ready and in order, the case is one step away from being set down for hearing. This is normal practice in any criminal appeal.
“Thus far, there is no news that such applications [for a QC] were ever made to the Bar Council under the Legal Profession Act 1976 (LPA). This further shows an intentional action on Najib’s part to further delay the disposal of his appeal,” Rafique, who is with Parti Pejuang Tanah Air, said.
Rafique was also perplexed that Najib appears to be further delaying the hearing of his appeal by filing the QC application when he has persistently insisted that he has a good case.
“One has to keep in mind that Section 18(3) of the LPA states that the attorney-general as well as the secretary of the Bar Council and the state Bar, of which the incoming ‘foreign’ counsel intends to practice, will have to give their reasons to support or otherwise the said application which is to be made by court.
“The expertise of this intended QC is also of interest as what special skill set does he or she possess? What special issues in the appeal (that the QC has) which over 20,000 lawyers in Malaysia are ill-equipped to handle?” he added.
In the petition of appeal filed on April 25, a total of 94 grounds of appeal were filed by Messrs Shafee & Co — a significant reduction from the 376 grounds covered in the Court of Appeal.
Among the grounds of appeal are the High Court and Court of Appeal’s:
• Rejection of the argument that Najib has no personal interest in SRC and that his interest was purely professional and official due to the fact he was the advisor emeritus, finance minister and prime minister at that time.
• Ignoring the material gap between the cabinet’s decision on the two government guarantees and the receipt of money in Najib’s accounts more than two years later, which the defence argues demonstrates lack of nexus.
• Acceptance of Najib as an agent and
shadow director pursuant to Section 402A of the Penal Code, which the defence argues was flawed as it did not draw a clear distinction of him as a shareholder and not a director.
• Concluding that Najib had overarching control and full dominion over SRC including its property.
• Refusal to accept the argument that Najib believed that the millions of ringgit in his bank accounts were the balance remaining from a donation from a Saudi royal.
• Use of its own logic or rationale in trying to fulfil the elements of all the charges or the gaps that existed, instead of relying on the oral and or documentary evidence adduced in court.
On Dec 7 last year, a three-member Court of Appeal panel unanimously upheld the High Court’s verdict of guilty on all seven charges as well as the sentence meted out. Nearly five months have passed since the appellate court’s decision and 19 months since the High Court’s verdict.
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