KUALA LUMPUR (Aug 19): The four abuse-of-power charges that former prime minister Datuk Seri Najib Razak faces in the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) case are "fundamentally flawed" and "defective", according to the defence.

Defence counsel Tan Sri Muhammad Shafee Abdullah said the charges overlapped, were not specific enough, and therefore presented difficulties in mounting a proper defence. On this ground itself, he argued that his 71-year-old client should walk free.

"The four charges are defective as [they are] duplicitous, multiplicities and therefore [they are] ambiguous," the senior lawyer said, addressing the court on the first day of oral submission at the end of the prosecution's case at the High Court on Monday.

The four charges are the principal (main) charges in this trial. Each of the charges had been broken down to several elements or "limbs", articulating actions Najib had allegedly taken to gratify himself.

The defence contends that these "limbs" should be separate charges, which would then allow the defence to tackle them separately, with a sharpened defence.

"We are not asking our client to be [slapped with] more charges. We are saying this is a fair trial, so you have to specify [clearly]. If you had broken it up, [it] would show the hollowness of the prosecution's charges," Shafee told the court.

He said the prosecution had failed to specify the direct or indirect interest Najib had in any of the decisions stated in the charge.

The senior lawyer also added that the charge states that Najib had received the gratification, but it did not state that he had abused his position.

"The prosecution drafted the charge in a very convoluted fashion and got it wrong. I have never come across charges like this before [in my 46 years of practice]," he argued, adding that his client is prejudiced by the botched drafting of the charges.

Tackling the first charge, the defence challenged the facts of the charges, which are alleged to have occurred between Feb 24, 2011, and June 14, 2011, at AmIslamic Bank Bhd, Jalan Raja Chulan.  

The defence stated that Najib was not even present at the bank to abuse his official position there.

"My client hasn't even seen the AmBank building," Shafee said on Monday.

The defence added that the prosecution has to prove that Najib abused his power in AmIslamic Bank’s premises.

The first abuse of power charge revolves around Najib's purported actions from April 2009 to May 2011, which resulted in him getting gratification of over RM60 million.

The charge is further broken down into four "limbs", which begins with Najib tabling a memorandum in April 2009 for the Cabinet’s approval. The proposal concerned a government guarantee for Terengganu Investment Authority (TIA) to get domestic and foreign market loans of up to RM5 billion by way of Islamic Medium Term Notes. TIA is 1MDB's predecessor.

The defence brought up the argument that the charges were flawed and plagued with errors during the tail end of the trial. The prosecution, led by deputy public prosecutor Ahmad Akram Gharib, countered that elements of this charge was in line with Section 23(2) of the Malaysian Anti-Corruption Commission Act where there is a presumption that Najib had abused his power.

The prosecution had stressed previously that the actions in the four limbs were actions that attracted the presumption that Najib had abused his power.

Section 23(2) says that an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative or associate, when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.

On Monday, Shafee argued that it was clear that no personal interest — direct or indirect — could be presumed against Najib under Section 23(2).

Trial judge Datuk Collin Lawrence Sequerah interjected at several junctures, questioning and seeking clarification on Shafee's technical submission.

At the onset of proceedings for the day, Shafee had also informed the court that the defence has about 2,500 pages of submissions, which, when included with its 500-page reply to the prosecution's submissions, come up to 3,000 pages in total.

In this trial, Najib faces four counts of abuse of power for using his position as the then-prime minister, finance minister, and chairman of 1MDB’s board of advisers to receive gratifications worth US$620 million (RM2.27 billion). He also faces 21 money-laundering charges.

The trial continues on Tuesday (Aug 20).