Friday 24 May 2024
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This article first appeared in The Edge Malaysia Weekly on December 26, 2022 - January 1, 2023

THE year 2022 will go down in history as a watershed year for Malaysian politics, a chief reason being the imprisonment of former prime minister Datuk Seri Najib Razak, following the Federal Court’s quashing of his appeal. It upheld a 12-year jail sentence and RM210 million fine meted out by the High Court in 2020 after he was found guilty on all seven charges in the SRC International trial.

His imprisonment marks the first time in Malaysian history that a former prime minister has been sent to jail.

Najib will spend 2023 in Kajang prison isolated from the rest of the prisoners due to his VIP status, apart from occasional trips out to the Jalan Duta Court Complex as he also faces charges in the 1Malaysia Development Bhd (1MDB- Tanore) trial as well as the 1MDB audit tampering trial.

From the first day of trial on April 3, 2019 at the Kuala Lumpur High Court, where Najib was slapped with seven charges, it took three years, four months and 20 days for the former Pekan MP to see the inside of a prison cell as the courts allowed him bail pending the final appeal at the apex court.

In that time, nine judges agreed he was guilty — the High Court judge who sentenced him, three Court of Appeal judges who upheld the sentence as they did not see any appealable error in the High Court judgment as well as a five-judge Federal Court bench, which included Chief Justice Tun Tengku Maimun Tuan Mat.

In all instances, all nine judges were unanimous in their findings that Najib used his power as the then finance minister and prime minister to establish SRC International Sdn Bhd — the wholly-owned subsidiary of 1MDB — approving a whopping RM4 billion in loans that SRC obtained from Kumpulan Wang Persaraan (Diperbadankan) or KWAP, and channelling RM42 million from the company into his personal bank accounts.

The Court of Appeal judges — comprising Justices Datuk Abdul Karim Abdul Jalil, Datuk Haz Zanah Mehat and Datuk Vazeer Alam Mydin Meera — described Najib’s conduct in the SRC embezzlement a “national embarrassment”.

Strange manoeuvres at apex court appeal

Najib’s defence team appeared to have tried every legal manoeuvre in the book as his appeal at the Federal Court loomed in August.

First, it was trying to get a Queen’s Counsel from the UK to be part of his legal team at the appeal, an application that was quashed by the High Court after the prosecution, the Malaysian Bar and the KL Bar among others, objected to the application.

Then, in an unexpected attack on the judiciary, he trained his guns on High Court judge Datuk Nazlan Ghazali — who had  sentenced Najib to prison — by filing an application in the Federal Court against him, contending a conflict of interest as he had previously served as Maybank’s general counsel and company secretary from 2006 to 2015.

Defence lawyer Tan Sri Muhammad Shafee Abdullah claimed that because Nazlan had served as group general counsel for Malayan Banking Bhd previously, and had participated in the decision to give 1MDB a loan of RM4.17 billion to partly finance the acquisition of Tanjong Energy Holdings Sdn Bhd, he should have disqualified himself from the SRC trial as SRC was a subsidiary of 1MDB.

A further claim that Nazlan had taken a bribe of RM1 million from 1MDB was subsequently dropped, ostensibly because it could not be proved.

A final twist came three weeks prior to the Aug 15 court-mandated start date for the appeal when Najib unexpectedly discharged his lead counsel Shafee, and instead hired law firm Zaid Ibrahim Suflan TH Liew and Partners and lead counsel Datuk Hisyam Teh Poh Taik to argue his appeal.

The move was a surprise as Shafee had been a stalwart for Najib for more than four years since his legal battles started and it appeared that his new legal team hoped to leverage Hisyam’s good standing with the court to seek a four-month adjournment to prepare a “proper defence”.

On the first two days of hearings at the Palace of Justice, the five-member bench, led by Chief Justice Tengku Maimun, along with Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim and Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah, swiftly dismissed the application for fresh evidence and Hisyam’s request for an adjournment of the trial.

Tengku Maimun said the request to delay proceedings any further was unwarranted and rebuked Hisyam for taking on the case if he was not prepared. Hisyam then moved to discharge himself but Tengku Maimun would not hear of it.

The senior lawyer was kept on as Najib’s counsel even though he declined to submit in Najib’s defence, despite numerous opportunities accorded him by the court to do so.

Ad hoc prosecutor Datuk V Sithambaram was asked to submit while Najib chose not to even throw a punch in what he had referred to as “the fight of his life”.

Hisyam, throughout the seven days, sat silent while Sithambaram submitted on behalf of the prosecution. When asked by Tengku Maimun if he was going to submit Najib’s appeals, Hisyam said that he would not, effectively condemning Najib to jail.

At the end of Sithambaram’s submissions, Hisyam made another application — this time to have Tengku Maimun recused based on a Facebook posting her husband had made in 2018 about Najib, claiming a conflict of interest on her part.

Tag team of Hisyam and Shafee; Shafee told ‘no reason for you to come back tomorrow’

At that juncture, Hisyam unexpectedly enlisted the help of Shafee to handle the application, and just like that, Shafee was back in Najib’s corner.

Unsurprisingly, Shafee told the court that he needed an adjournment and that it was not an attempt to delay proceedings.

“I was just informed about the matter by Hisyam two hours ago and I have no materials before me. After all, the integrity of the judiciary is at risk. It brings no harm to grant an adjournment for me to gather my thoughts within 24 hours. Justice must be seen to be done,” he pleaded.

Tengku Maimun dismissed the application, saying there was no reason to adjourn the recusal matter, and asked Hisyam to proceed with his submission.

Shafee responded by saying, “Can I come back tomorrow?”

Justice Tengku Maimun said it was entirely up to the lawyer if he wanted to come back tomorrow. “If we proceed today, everything will be concluded today. No reason for you [Shafee] to come back tomorrow. In fact, nobody needs to come back tomorrow,” she said in the first indication that the bench was prepared to make its judgment on that very day.

After the bench dismissed the application, it delivered its judgment, which coming after long delays, was short and sweet.

The CJ said Najib’s defence based on the 94 grounds of appeal could be summarised into two points, namely that the High Court judge was wrong to call a prima facie case and that the Court of Appeal had erred in fact and law when finding that the trial judge had correctly appreciated the defence, as the defence had managed to raise reasonable doubt to all seven charges.

But she said that the findings of the High Court judge were sound, while the Court of Appeal’s decision to uphold the lower court’s guilty verdict was also correct.

In the evening of Aug 23, Najib was handcuffed and taken by a motorcade to Kajang prison to serve his sentence. Since then, he has been admitted to hospital for various ailments and then sent back to prison.

Judiciary stood firm in the face of attacks by Najib and co

Despite the allegations of conflict of interest against Nazlan and Tengku Maimun, the judiciary came out untarnished from the whole episode.

If anything, its steadfast and unyielding upholding of the law was a beacon of light in a difficult year of political mudslinging, as it showed that the judiciary is functioning independently and doing its job.

This was also despite pressure from Najib’s allies and fan base to acquit him of the charges.

Tengku Maimun’s composition of the apex bench was also gratifying in the gender and racial balance as the quorum included three women judges as well as a racially diverse pool of judges, including from East Malaysia.

Attempts at judicial review and pardon while fighting 1MDB cases

Najib and his legal team have filed for a judicial review at the very same Federal Court against its decision to uphold Najib’s sentence.

The application for the judicial review proper to commence is scheduled to take place on Jan 19, 20 and 26, 2023.

The Jan 19 hearing is for Najib to obtain leave (permission) from the Federal Court to have the judicial review heard on its full merits.

In the application, 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. He 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 also a review of the court’s decision on Aug 23 to reject his application to recuse Tengku Maimun.

He 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.

It should be noted that it is extremely rare for the apex court to grant leave for a review as the threshold is high, with the applicant having to show that injustice has been done.

Shafee is claiming that injustice was done as Najib was not afforded a proper legal appeal as Tengku Maimun had rejected their application for an adjournment.

At the same time, Najib has also applied for a pardon from the Yang di-Pertuan Agong but that too seems highly unlikely at this point in time.

The SRC matter aside, Najib still has other 1MDB cases on his plate.

With seven witnesses left, 2023 will also most likely see the prosecution stage of the 1MDB-Tanore trial come to a close, at which point the presiding judge will decide if the prosecution has put forth a prima facie case against Najib to enter his defence.

Najib, who is also fighting a case in the 1MDB audit tampering trial together with co-accused Arul Kanda Kandasamy, will know on Jan 30 whether he is required to enter his defence or is acquitted on all charges, when presiding judge Mohamed Zaini Mazlan delivers his decision.

 

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