This article first appeared in Forum, The Edge Malaysia Weekly on August 29, 2022 - September 4, 2022

The leak in the highest office of the judiciary in the closely followed trial of former prime minister Datuk Seri Najib Razak cannot be taken lightly.

After the Chief Registrar of the Federal Court clarified last Tuesday that the copy of the judgment that was circulating before the actual outcome of the case was publicly delivered was merely a draft, there was no question on the authenticity of the document.

However, the pertinent question is how did the draft copy of the judgment get into the hands of blogger Raja Petra Kamarudin, who posted it on his website? Raja Petra, who resides in London and is a known Najib supporter, had put up the judgment before the final judgment was delivered.

The post had been discussed by some but was not widely reported until it was raised in the Federal Court during the hearing of the appeal.

The initial reaction was that the bench of five judges, led by Chief Justice Tun Tengku Maimun Tuan Mat, had determined the judgment even before hearing the submission from lawyers representing Najib.

The issue was cleared when the Chief Registrar issued a formal statement to clarify that the leaked judgment was merely a draft.

Nevertheless, what is obvious is that there is a security breach in the highest office of the judiciary.

How did the unsigned draft judgment of a high-profile Federal Court hearing get leaked to a blogger residing in the UK?

Whether it was committed by the “deep state” working with the legal team aligned with the now convicted former prime minister, or the act of an individual who deliberately leaked the draft, it warrants a serious investigation.

The leak is probably the work of an individual or a group of people that are lower in the hierarchy of the judiciary. In return for leaking out the draft judgment, they would have probably been rewarded with money or other forms of gratification.

What is pertinent in the investigation is to uncover the mastermind behind the leak and his or her motives.

The investigation could determine if there is a “deep state” within the legal system that is working with some influential figures to undermine the office of the Chief Justice.

Tun Tengku Maimun, who was appointed to the highest office of the judiciary in May 2019, is proving to be a decisive no-nonsense judge when dealing with prominent lawyers. In the Najib case, she was firm in her decision to not prolong the suit beyond what was necessary.

If the security of her office can be compromised, what more that of the other judges?

A breach such as this is detrimental to the integrity of the judiciary. For instance, an accused who is out on bail will have the tendency to flee if he or she is aware that the final judgment is not in his or her favour.

It is common practice for judges to write draft judgments, especially for cases that are heard before the Court of Appeal and Federal Court. At that level, judges tend not to wait until the case is over before starting to pen down their judgment.

In an incident that clearly illustrates this example, in the US, the draft judgment prepared by one of the judges in a landmark case related to abortion rights was leaked a month before the actual judgment. The judge in question affirmed that the leaked document was a draft and not the final judgment.

In Malaysia, when the file reaches the bench of the Federal Court, matters such as the background to the case, facts of the case and grounds for appeal have all been laid out clearly. There is case management that determines the documents and schedule of the hearing.

There are also written submissions by lawyers stating the grounds for the appeal application. In Najib’s case, his legal team submitted the application accompanied by 94 grounds of appeal.

The written submission is circulated to the panel of judges before the trial proper and there is deliberation among panel members on the documents submitted. During pre-trial deliberations, the judges would tend to highlight matters that ought to be scrutinised further during the trial proper.

During submissions, the judges hear the arguments of the lawyers and the relevant applications of the law.

Hence, as the trial gets underway, there is ample material with which to start working on the draft judgment. If there is a panel of judges, the draft is circulated among them. After hearing the arguments from both sides, the judges come out with their final judgment and sign off on the verdict.

In Najib’s case, it was more pertinent that the panel of judges worked on a draft judgment because right from the start, indications were that the trial would end before the nine days that had been set aside to hear the case.

This is on account of the lawyer for the former prime minister stating that he would not be making any oral submissions.

Najib roped in Hisyam Teh Poh Teik to present his case in the Federal Court in the final weeks before the hearing, replacing Tan Sri Muhammad Shafee Abdullah. Hisyam officially applied for a postponement of three to four months on the second day of the trial, but the motion was denied.

The lawyer subsequently stated that he was not prepared to make oral submissions. The Chief Justice repeatedly asked Hisyam about the matter as the trial went into its fifth day, which was a Friday, and there was no change in the stance of the former.

The case only resumed on Tuesday, which meant the judges had three days to prepare a draft judgment.

Draft judgments do get leaked, but it is a rare occurrence. A draft judgment gives a preliminary view of the possible outcome of the case but it is not the final decision of the judges.

The investigations into the matter have to be swift and decisive because the draft judgment is a highly confidential document meant to be circulated among the panel of five judges presiding over the case.

The leak, if not dealt with swiftly, will affect the credibility of the judiciary.

M Shanmugam is a contributing editor at The Edge

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