KUALA LUMPUR (Oct 13): The prosecution in former prime minister Datuk Seri Najib Razak’s SRC International Sdn Bhd case has posited that Najib’s counsel's handling of his Federal Court appeal treated the whole process “complacently”, and argued that his motion to review the apex court's decision that confirmed his guilt and sentence is devoid of merit.
In an affidavit in reply to Najib’s motion for the review filed by senior lawyer Tan Sri Muhammad Shafee Abdullah last month, deputy public prosecutor (DPP) Mohamad Ashrof Adrin Kamarul claimed that the law firm that was handling the Federal Court appeal, namely Zaid Ibrahim Suflan TH Liew and Partners (ZIST), had treated the appeal complacently and “expected that the applicant (Najib) would be entitled to an adjournment”.
ZIST, together with senior counsel Datuk Hisyam Teh Poh Teik, took over the appeal in July, after Najib sacked Shafee as his counsel.
Shafee is now back to representing Najib in the motion to review the Federal Court decision which upheld the Court of Appeal and High Court decisions to sentence Najib to 12 years in jail and a RM210 million fine.
Ashrof claimed that ZIST was “overly confident” that Najib’s application to adduce fresh evidence in the Federal Court appeal would succeed, and that an adjournment would be allowed as a result of this.
“Messrs ZIST deliberately chose to focus on the application for additional/fresh evidence instead of the said appeal.
“I aver that Messrs ZIST treated the whole process complacently, and expected that the applicant would be entitled to an adjournment, despite the clear instruction of the Federal Court that the main appeal would be proceeded with on the scheduled dates,” the DPP said.
He said that Najib and his counsel had expected the adjournment of the appeal for three to four months to be granted “as of right”.
“This was evident during case management, where Najib’s counsel repeatedly expressed the intention to seek an adjournment, even after being told that the Federal Court would not grant an adjournment,” the DPP said.
Najib is seeking a review of the Aug 16 decision by the Federal Court to reject his application to adduce further evidence concerning the trial judge in the SRC case, namely Datuk Mohd Nazlan Mohd Ghazali.
The former PM is also seeking a review of the apex court's decision on the same day to dismiss his bid to postpone his appeal hearing, and a review of the court's decision on Aug 23 to not recuse Chief Justice Tun Tengku Maimun Tuan Mat.
The former Pekan Member of Parliament is also seeking a review of the court's decision on Aug 23 to affirm his conviction and sentence. He is seeking a panel of seven judges in a bid to overturn the decision.
However, before a review can be heard, Najib will have to first gain leave (permission) from the Federal Court for the motion to have the review heard on its full merits.
A review can be heard under Rule 137 of the Federal Court, where the court could use its inherent jurisdiction to hear any application or to make any order as may be necessary to prevent injustice, or to prevent an abuse of the court process.
However, it is to be noted that it is extremely rare that the apex court grants leave for a review as the threshold is high, where the applicant will have to show that injustice has been done.
Ashrof also added that the review does not merit the circumstances under Rule 137 of the Federal Court.
“Ultimately, the said application is devoid of any circumstances that would justify exercising the Federal Court’s power of review under Rule 137,” he said in the affidavit filed on Oct 7, and added that the notice of motion for the review should be dismissed.
Najib, 69, was found guilty of abuse of power in relation to a RM4 billion loan given by Retirement Fund Inc (KWAP) to SRC between August 2011 and March 2012.
He was also convicted of criminal breach of trust and money laundering involving RM42 million of SRC funds between Dec 26, 2014 and Feb 10, 2015.
For this, Najib was sentenced to 12 years' jail and fined RM210 million by the High Court, with the jail sentence and fine being upheld by the Court of Appeal on Dec 8 last year, and further affirmed by the Federal Court on Aug 23.
With this, Najib became Malaysia's highest-ranked politician to be convicted and sentenced. He is also facing four ongoing trials in relation to SRC's former parent company, 1Malaysia Development Bhd (1MDB).
Najib has also filed a motion seeking a royal pardon from the Yang di-Pertuan Agong with regard to the offences he was convicted of. The former PM is no longer an MP as Parliament was dissolved earlier this week.