KUALA LUMPUR (Sept 12): As the Court of Appeal (COA) disposed of another high-profile case on Tuesday, retaining former prime minister Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president Arul Kanda Kandasamy's acquittal in the 1MDB audit report tampering case, a lawyer said the Attorney General's Chambers (AGC) should not fault the public if they view that this caper was done intentionally.
Criminal lawyer Datuk Dr Baljit Singh Sidhu also said several heads in the AGC should roll, following its decision not to file a petition of appeal or an extension of time.
“The public should not be faulted if they have a perception this was done deliberately or intentionally, after the notice of appeal was filed. The prosecution should not have taken the COA's kindness in the past for granted.
“However, how much kindness can the appellate court give, when the prosecution had continuously failed to file the petition or even seek an extension of time after three case managements? It was the right decision by the COA on Tuesday to strike out the prosecution’s appeal,” Baljit said when contacted by The Edge.
He added that someone must take responsibility for this travesty, as it had created a negative perception of the AGC and new AG Datuk Ahmad Terrirudin Mohd Salleh.
“It is clearly negligence on the part of the AGC to now seek an extension of time before the bench. How much time does the prosecution need to file the petition of appeal, since the grounds are made available earlier along with the record of appeal?” Baljit asked.
Last week, the prosecution withdrew 47 charges of criminal breach of trust, corruption and money laundering faced by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi in yet another high-profile case, when the defence had already been called and 15 witnesses, including Zahid, had testified.
Already, the move had seen Malaysian United Democratic Alliance (Muda) president Syed Saddiq Syed Abdul Rahman withdrawing his party from the unity government and changing his Dewan Rakyat sitting to be on the opposition’s side.
Asked whether there was a remedy, Baljit said no, as the appeal had already been struck out.
Former Malaysian Bar president Salim Bashir said once a notice of appeal is filed, the appellant will be served records of appeal and grounds.
“Under Section 53(1) of the Courts of Judicature Act, the appellant will have 10 days to file a petition. The petition must state the substance of judgement appealed against, and contain points of law and facts where the trial judge has erred.
“If the petition is not filed within the prescribed time, and no extension application was made, the appeal will be deemed to have been withdrawn,” he told The Edge.
Response from Sivananthan and Shafee
Najib and Arul Kanda remain acquitted of charges of abuse of power with regard to the 1MDB audit report tampering matter by the COA on Tuesday, after the three-member bench did not grant an oral application by Deputy Public Prosecutor Datuk Yusaini Amer Abdul Karim, who asked for another case management date, so that the prosecution could file an extension of time to file its petition.
Yusaini, who is the deputy head of the Appellate and Trial Division, told the bench led by COA judge Datuk Hadhariah Syed Ismail that an extension of time should be granted, as this was a matter of public interests, and another case management date should be given, as the instructions to file the petition were from the highest management of the AGC.
Arul Kanda's lawyer Datuk N Sivananthan objected, and said the records of appeal were ready on June 26, with a 10-day deadline which expired on July 6, and that the prosecution had ample opportunity to file the petition.
"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.
Shafee concurred, and added that the court was dealing with the acquittal and liberty of a person, and pointed out that the public prosecutor’s office with a few thousand members had no reason to file it late.
“This shows the lack of intention to proceed [with the appeal],” the senior lawyer added.
When met after proceedings, Sivananthan and Shafee were asked if the prosecution can file an application to reinstate the appeal, where Sivananthan indicated that he was doubtful.
"I don't think so. It's been struck off, without any liberty to file afresh," he said.
Shafee, however, said that the prosecution could try to make such an application, but the chances are slim.
"They can try, but I don't think they will see any light at the end of the tunnel. The only light they will see is a train coming in the opposite direction," he said.
When asked what are the procedures of such an application, the senior lawyer said that the prosecution would have to file to reinstate the notice of appeal, and make a second application for an [extension] of time.
"I don't think they have any prospect," he said when speaking to the press after the COA decision.
He said that this is part of the inherent jurisdiction of the court, and that there were no deadlines for this, but as the prosecution was already late, it should have filed any such application "yesterday".
In a prepared statement, Najib's lawyers also said that the charges should not have been levelled against the former prime minister in the first place, given the "overwhelming evidence presented in court".
"This decision alone has caused additional hardship to our client (Najib) over the past five years, let alone if the appeal against the acquittal in the High Court decision had been continued," they said.
Speaking briefly to the press, Arul Kanda said that the defence had been vindicated, and it was time for him and his family to move on.
"[It's] time for me and my family to move on. I thank the court for making the decision in accordance with the law," he said.