SRC review: Apex court denies Najib's bid in 4-1 verdict

Najib Abdul Razak will continue to serve his 12-year jail term in the RM42 million SRC International corruption case.

A five-person Federal Court bench chaired by Chief Judge of Sabah and Sarawak Abdul Rahman Sebli in a majority 4-1 verdict today denied the former prime minister's review application.

Rahman made up the sole dissenting ruling to allow the review.

The majority ruling was courtesy of the other bench members namely Federal Court judges Vernon Ong Lam Kiat, Rhodzariah Bujang, and Nordin Hassan as well as Court of Appeal judge Abu Bakar Jais.

This verdict is in line with a previous decision on Aug 23 last year by a different Federal Court bench chaired by Chief Justice Tengku Maimun Tuan Mat to uphold Najib's guilty verdict as well as a 12-year jail sentence and RM210 million fine.

In reading out the majority judgment, Ong said that there was no merit in the review application.

He said that it is up to the apex court to decide whether to allow adjournment of the appeal hearing last year or not.

One of the contentions behind Najib’s review application was that the previous apex bench last year erred in not allowing the former finance minister’s legal team - which comprised veteran lawyer Hisyam Teh Poh Teik, among others - an adjournment of three to four months in the SRC appeal.

Ong noted that the then apex bench had allowed Hisyam to submit on behalf of Najib and that the lawyer refused to do so.

Hisyam refused to submit as he claimed he was not prepared to do so for the complex appeal and that the previous bench denied the application to adjourn the appeal hearing so the defence team could prepare for the appeal.

Hisyam then also applied to discharge himself from acting for Najib on grounds that he was not prepared, but the previous bench denied this too.

“It cannot be said that the counsel for the applicant (Najib) had not been given the right to be heard. There was no denial of the applicant’s right to be heard,” Ong said.

Ong noted that the law empowers the apex court with discretion whether to allow or deny an application to adjourn the appeal hearing or even for a lawyer to discharge himself from acting for the appellant and that the previous bench had not erred on this.

The Federal Court judge said that Tengku Maimun had correctly decided not to recuse herself from hearing Najib’s SRC appeal last year, adding that the test of bias is the real danger test rather than the real likelihood test.

“We find that the chief justice, on the grounds of judgment on the recusal application, applied the correct test to the case.

“The decision of the chief justice not to recuse herself is supported by other panel members. There is no basis for this court to review the recusal decision,” Ong said.

Ong noted that Najib, in his affidavit in support of the review application, claimed to have been deprived of his fundamental liberty under the Federal Constitution to a fair appeal hearing.

“In our view, the applicant is not in a position to object to the court’s decision to decide in an application against him unless there is bias and abuse of process.

“The fact is that his feelings genuinely cannot dictate our conclusions. We say that the applicant is the author of his misfortune,” he said before dismissing Najib’s review application.

Dissenting judge inclined to quash sentence

In his dissenting ruling, Rahman said he is inclined to allow Najib’s review application and quash the former prime minister’s conviction on one count of abuse of power, three counts of criminal breach of trust (CBT), and three counts of money laundering involving RM42 million of funds from SRC, a former subsidiary of 1MDB which later became fully-owned by the Minister of Finance Incorporated (MoF Inc).

MoF Inc also fully owns the Malaysian sovereign wealth fund 1MDB.

Rahman also said that he was inclined to quash Najib’s sentence as he was denied a fair hearing in the SRC appeal last year.

Rahman said that Najib’s side of the story was not heard during the appeal and that the apex bench only heard the prosecution’s side over two days.

He noted that following Hisyam's failure to get the apex court’s leave to discharge, the lawyer had declined to submit, pointing out that the bench did not even ask Najib whether he would like to submit instead.

“The (apex) court (last year) should have invited the applicant (Najib) to speak first before allowing the deputy public prosecutor to speak, but this was not done,” Rahman said.

Rahman said this defeats the right of a party in a legal matter and thus the apex court has to intervene in such situations.

He pointed out that the adjournment application last year was done in good faith as Najib’s then legal team was only brought on board a short period before the appeal hearing and that there was a voluminous amount of documents to go through, namely over 30,000 pages.

“It was submitted that if at all any blame is to be attributed to anyone, it should be to his lawyers and not the applicant. In my humble opinion that is a fair statement to make. There is no justification to make the applicant pay such a heavy price, as the price that he is paying now, for his lawyers’ mistake,” he said.

“What is pertinent to note in the whole scheme of things is that there was no allegation, proven or otherwise, that the seeking of an adjournment of three to four months was a ploy or strategy by the applicant to delay the hearing of the main appeals.

“Importantly, there was no allegation that the change of solicitors and counsel by the applicant was for that improper purpose,” he said.

Rahman also noted that the previous bench did not consider whether the act of not allowing the adjournment resulted in a miscarriage of justice.

"Very substantial injustice would be caused to the applicant (Najib) by the refusal to grant an adjournment as he would be left without legal representation at the hearing of the main appeals.

"He could not be said to have legal representation when the counsel of his choice (Hisyam) was unwilling to represent him any further.

"A forced representation is no representation at all, especially where, as in this case, counsel refused to take part in the hearing of the main appeals. That is common sense.

"Obviously, the applicant was in no position to argue the appeals himself, despite being a former prime minister. I do not think that is a point for argument. The fact is he was clearly disadvantaged," Rahman stated.

The prosecution was led by deputy public prosecutor V Sithambaram.

Najib was represented by lead defence counsel Muhammad Shafee Abdullah.

No man in this land is above the law

When met by the media after proceedings, Sithambaram said today's verdict showed that the charges against Najib were legally mounted and not politically motivated.

The DPP said there is no joy in a successful prosecution except that the Attorney-General's Chambers has been able to ensure the rule of law prevailed.

"The SRC prosecution's biggest message to politicians or other likely offenders is that this prosecution has shown that no man in this land is above the law.

"I want to stress that this successful prosecution must send a chilling message to all would-be offenders that the law will catch up with you and punish the guilty," Sithambaram said.

However, he conceded that there is a possibility of the defence filing a second review application if Najib wished to do so.

Meanwhile, when met by the media, Shafee declined to confirm whether the defence team would file a second review application.

While expressing disappointment with the majority ruling, the lawyer noted that the dissenting judgment opens a new avenue for Najib as Rahman's ruling was that the former prime minister was denied a fair trial due to the refusal to allow adjournment last year.

"As a result of the minority judgment, there is an avenue that is opened. There are cases where the review was not only done once. As long as there are grounds for a fresh review, it can (be done)," Shafee said.

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