Friday 29 Mar 2024
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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.

Application to hire QC will be heard first

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.

94 grounds of appeal

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.

 

Allegations put Nazlan under the spotlight; CJ warns of attempts to tarnish judiciary

by Tarani Palani

 

Recent allegations against Datuk Mohd Nazlan Mohd Ghazali have put the Court of Appeal judge under scrutiny given that, sitting in the High Court, he had presided over the SRC International Sdn Bhd trial of former prime minister Datuk Seri Najib Razak and found him guilty on all seven criminal charges.

The latest round of attacks began last month when Tan Sri Muhammad Shafee Abdullah, Najib’s counsel, pointed out that Nazlan had served as group general counsel and company secretary for Malayan Banking Bhd (Maybank) in 2012, when the bank decided to give 1Malaysia Development Bhd (1MDB) a loan of RM4.17 billion to partly finance the acquisition of Tanjong Energy Holdings Sdn Bhd.

Shafee claimed that as 1MDB had failed to repay the loan, and given that SRC International was a subsidiary of the strategic development company, Nazlan may have formed some prejudices in the case and would have a conflict of interest in presiding over the matter.

“Question is, if you have formed some kind of opinion about the company, about the way the company mishandled itself, how can you hear [a case on 1MDB’s wholly-owned] subsidiary SRC?” he asked, adding that his team had only come to know of the matter even though it had been reported in 2018.

Shafee said he may file an application to adduce fresh evidence and also called for a retrial.

Judiciary lodges police reports

The next day, March 16, the judiciary lodged a police report against two portals, Malaysia Now and Malaysia Today, over articles regarding Nazlan. Chief Registrar of the Federal Court of Malaysia said that the articles involved Nazlan’s alleged involvement in 1MDB and SRC before he became a judge.

The articles — both published on March 14 — were titled “Group calling for Najib’s pardon now wants judge Nazlan arrested” and “Shocking Revelation: Najib’s Trial Judge Nazlan’s Conflict-of-Interest Exposed” respectively. The latter article was written by UK-based blogger Raja Petra Kamarudin.

Last week, another police report was made against Malaysia Today, this time by Nazlan himself over an article titled “Judge Mohd Nazlan being investigated for unexplained RM1 million in his bank account” in which Raja Petra alleged that the money had purportedly come from fugitive-financier Low Taek Jhow, better known as Jho Low — the alleged mastermind in the heist of billions of dollars from 1MDB.

Nazlan described the allegations in the article published on April 20 as “false, baseless and malicious”, aimed at undermining his credibility as an Appeals Court judge as well as interfering with the administration of justice.

MACC investigations and CJ’s stance on judicial independence

Matters intensified when Malaysia Anti-Corruption Commission (MACC) chief Tan Sri Azam Baki confirmed that investigation papers had been opened following reports lodged with the anti-graft body. MACC later confirmed that three complaints had been received, on March 15, April 23 and April 27.

A number of parties have criticised the MACC’s investigations, including the Malaysian Bar, opposition leader Anwar Ibrahim and DAP chairman Lim Guan Eng.

Bar president Karen Cheah said that Article 125 of the Federal Constitution provides a process to deal with judicial misconduct, noting any investigation by the MACC could give rise to the perception that judges may make decisions so as to avoid being the subject of investigations, and that this would erode confidence in the rule of law.

At an elevation ceremony at the Palace of Justice last Wednesday, Chief Justice of Malaysia Tun Tengku Maimun Tuan Mat said that it was natural for judges to be criticised by parties aggrieved by court decisions, especially in cases of public interest, but she observed that recent events were “a bit too much”.

She said that although the judiciary was open to criticism, it does not mean it is open to citizens levelling “unfounded and scurrilous attacks” against it or a particular judge “to further their own ends”.

“Whilst we cannot control the words or actions of some quarters who are bent on tarnishing or destroying the image of the Judiciary, it is within our control to ensure that no one meddles in our affairs.

“And, interference will not happen, so long as cases are decided without fear or favour, without ill-will or motive, without any external or internal pressure and without regard to personalities,” she stressed in a sternly-worded speech that drew a standing ovation from the judges present — a rare occurrence in official judicial functions.

In response, MACC released a statement last Thursday emphasising that it was within its purview to investigate any public official — including judges — as per Section 3 of the MACC Act 2009. It added, however, that an investigation doesn’t mean that the person committed an offence. It said that in the past, it had investigated judges and passed the investigation papers to the Attorney-General’s Chambers (AGC) for assessment.

MACC said that investigations into Nazlan involved public interest and were still “at the early stages”.

 

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