PUTRAJAYA (Aug 15): A five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat, along with the No 4 in the judiciary who is the Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, and three Federal Court judges, namely Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah, make up the quorum in former prime minister Datuk Seri Najib Razak’s application to adduce further evidence in his SRC International Sdn Bhd appeal at the Federal Court here.
While they are currently hearing the application, it remains to be seen whether this five-member bench will hear the main appeal against the decisions of the High Court and the Court of Appeal (COA) which upheld Najib's sentence of 12 years in jail and a RM210 million fine.
The five-member bench is hearing submissions from Najib’s lead counsel Hisyam Teh Poh Teik, who is flanked by Datuk Zaid Ibrahim, Liew Teck Huat and Rueben Mathiavaranam.
The prosecution is led by ad hoc prosecutor Datuk V Sithambaram, deputy public prosecutors (DPPs) Donald Joseph Franklin and Mohd Ashrof Adrin Kamarul with Sulaiman Kho Kheng Fuei.
The judges will hear from Hisyam about why there is a need for a re-trial.
The defence's main argument is over High Court trial judge Datuk Mohd Nazlan Mohd Ghazali for not declaring prior to the trial that he served at Maybank as its general counsel and company secretary, the bank which through its research firm had proposed the idea of the setting up SRC.
Najib’s lawyers claim that this is a “conflict of interest” from Nazlan, who convicted Najib.
Initially, Najib and his previous lawyers from Messrs Shafee & Co had asserted possible graft committed by Nazlan as part of the claim.
However, since last month, he had dropped such notion despite the judge being subject to Malaysian Anti-Corruption Commission (MACC) investigations and the papers sent to Attorney General Tan Sri Idrus Harun.
Last week, The Edge ran a story about the possibility of the country’s two upper echelon judges being a part of the quorum for Najib’s final appeal.
The report said that COA president Tan Sri Rohana Yusuf and Chief Judge of Malaya Tan Sri Azahar Mohamed are already in their six-month extension period prior to compulsory retirement.
Under Article 125(1) of the Federal Constitution, a judge of the Federal Court shall hold office until the judge attains the age of 66 years or such later time, not being later than six months after the judge attains that age, as the Yang di-Pertuan Agong may approve.
Rohana reached 66 years of age in May and Azahar did so in April, but had their tenure extended. Following the extension, Rohana is scheduled to retire in November while Azahar is scheduled to retire in October.
In three important cases over the past month, both senior judges were not part of the bench hearing issues, including the challenge by politicians and companies of an MACC notice to compound in relation to 1Malaysia Development Bhd, and a referral over the constitutionality of Article 14A of the Penang state constitution which requires a lawmaker to vacate his/her seat when he/she leaves his/her party.
Similarly, in the matter of the Inland Revenue Board's appeal against the Malaysian Bar, which was also attended by representatives of the Sabah Law Society and the Advocates Association of Sarawak, both judges were also not part of the panel.
In all three cases, a seven-member bench was empanelled, led by Tengku Maimun.
The report also stated that should Rohana or Azahar not sit in, the chief justice or Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim would likely lead the bench in hearing the appeal.
It should be noted that should the Federal Court find no error in the High Court sentencing and COA upholding of Najib’s conviction, Najib is allowed to file a review against the Federal Court decision.
This would likely mean another Federal Court bench would have to be made up to hear the review. The bench members could be chosen from the present Federal Court members that did not hear the case, and if needed, other senior COA judges could be asked to make up the bench.
Rule 137 of the Federal Court Rules recognises the apex court's inherent power to, among others, review previous decisions in order to prevent injustice or abuse of process.
The former prime minister and former finance minister was found guilty of abuse of power in relation to approving RM4 billion in loans by Retirement Fund Inc to SRC, and three counts each of criminal breach of trust and money laundering of RM42 million of SRC funds.
Najib was sentenced to 12 years' jail and fined RM210 million in August 2020 by the High Court. Last December, the COA upheld the convictions and sentences, resulting in this pivotal final appeal.
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Maybank's loan to 1MDB irrelevant to charges faced by Najib in SRC trial, says Sithambaram
Najib's defence: Nazlan has conflict of interest in SRC trial due to his almost 10-year Maybank link
Najib’s 1MDB-Tanore trial adjourned, pending outcome of SRC appeal in apex court
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