Monday 27 May 2024
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PUTRAJAYA (Sept 12): The acquittal of former prime minister Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president Arul Kanda Kandasamy in the 1MDB audit report tampering case remains.

This follow a three-member Court of Appeal (COA) panel striking out the prosecution's notices of appeal, because they were deemed to have lapsed and invalid according to the law.

The panel led by COA judge Datuk Hadhariah Syed Ismail said that the prosecution was reminded on three occasions to file its petition of appeal, and had failed to do so. The panel noted that the prosecution also did not file for an extension of time to date.

"This is our unanimous decision. [Based] on the chronology of events, there were three case managements on July 21, Aug 28 and Aug 30 [respectively]. During the three case managements, [the prosecution] was given instructions to file its petition of appeal, but [the prosecution] failed to adhere to the court's instructions.

"As per the law, when a petition of appeal has failed to be filed within the stipulated time, and there are no applications for an extension of time to file the said appeal, then the appeal is deemed to have lapsed and is void ('terbatal'). That is the provision under the law," she said.

Hadhariah, who presided along with COA judges Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin, added that any application for an extension of time ought to be filed before the deadline on July 6. However, until Tuesday, the prosecution had yet to make any such application.

"As this case has been brought before this panel, we make the order that the two appeals [be declared] void. We follow the law," she said.

Previously, there were questions on whether the prosecution intended to continue with its appeal, as it had yet to submit its petition of appeal, which was due in early July, despite filing the notice of appeal earlier on March 9.

The petition of appeal would contain the grounds on which the prosecution was appealing against.

Under Section 53(1) of the Courts of Judicature Act (CJA), the appealing party has to file the petition of appeal within 10 days upon the completion of the record of appeal.

Section 53(3) of the Act stipulates that if a petition is not filed within the time prescribed by this Section, the appeal shall be deemed to have been withdrawn, but nothing in this subsection shall be deemed to limit or restrict the powers of extending time conferred upon the COA by Section 56.

'Instructions to file petition of appeal from the highest management of AGC'

The matter came up before the panel on Monday, where deputy public prosecutor Datuk Yusaini Amer Abdul Karim asked for another case management date, so that the prosecution could file an extension of time to file its petition.

Explaining the delay, he said that this was a public interest case, where the prosecution needed time to really study the documents, and added that the latest instructions to file the petition were from the "highest management of the Attorney General's Chambers (AGC)".

He added that Section 56 of the CJA says that the courts have the discretion to grant an extension of time.

However, Arul Kanda's lawyer Datuk N Sivananthan objected to this, and pointed out that the records of appeal were collected on June 26, while the 10-day deadline expired on July 6, and that the prosecution had ample opportunity to file the petition of appeal.

"Even this morning (Tuesday), there was no application [for an extension of time] before the court. [They are saying] 'we are going to file', and as late as yesterday, an application could have been filed," he said, adding that the reason why the parties were before the panel, as opposed to the court registrar, was for the appeal to be struck off.

Najib's counsel Tan Sri Muhammad Shafee Abdullah echoed Sivananthan's arguments.

"Here, we are dealing with the acquittal of a person, where the liberty of the person is at stake. Both of them were acquitted, and therefore the public prosecutor with a few thousand members there had no reason to file late. This shows the lack of intention to proceed [with the appeal]," Shafee said.

He added that the appeal ought to be struck off, and the prosecution can file an application to reinstate the appeal.

Panel: Regardless of profile, everyone needs to adhere to the law

Judge Hadhariah reminded the prosecution that it could have filed the petition first, and added or amended it later, and added that all parties must adhere to the law.

"You can't create your own timeline. You need to follow the CJA. Don't give excuses that it is a high-profile case, so therefore we don't have to follow the CJA. It doesn't matter if it is a high-profile or low-profile [case], everyone has to follow the law," she said.

In March, the High Court ruled that the prosecution had failed to prove a prima facie case against Najib, and acquitted him of purported abuse of power charges in this trial.

Arul Kanda, 47, charged with abetting Najib, was also discharged and acquitted.

The High Court also ordered that Arul Kanda be granted a certificate of indemnity under Section 63(3) of the Malaysian Anti-Corruption Commission (MACC) Act — the first case where a co-accused was offered a certificate of indemnity under this Section of the Act.

Najib, 70, was charged with abuse of power as a public officer in his capacity as the then prime minister and finance minister in altering the 1MDB audit report prepared by the National Audit Department, which was to be tabled to the Public Accounts Committee in March 2016.

This was allegedly so that no action could be taken against him by Parliament.

Among the items removed were fugitive financier Low Taek Jho’s (Jho Low) presence in 1MDB board meetings, and portions of 1MDB’s 2014 financial statements.

The charge was framed under Section 23(1) of the MACC Act 2009.

If convicted, Najib could have been liable to a maximum of 20 years’ jail, and a minimum fine of RM10,000 or five times the amount of such gratification, whichever is higher.

Edited BySurin Murugiah & Lam Jian Wyn
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