PUTRAJAYA (April 5): The Federal Court today says it will deliver its decision on four appeals related to ex-premier Datuk Seri Najib Razak's seven charges on receiving the RM42 million from SRC International Sdn Bhd, on Wednesday (April 10).
This follows the seven-member bench led by Chief Justice Tan Sri Richard Malanjum having today finished listening to three of Najib's appeals and one by the prosecution regarding the case.
Malanjum said the bench needed time after listening to the defence's and prosecution's submissions since yesterday and fixed April 10, at 11am, to deliver its decision.
Najib is appealing to the court for a pre-emptive gag order on the media and the people to refrain them from discussing or commenting on the case, for more witness statements and documents from the prosecution, and to question the legality of the transfer of the case from the Sessions Court to the High Court after the withdrawal of the Section 418A Criminal Procedure Code certificate.
The prosecution is appealing against the Court of Appeal's decision last month in allowing Najib's defence team to view senior lawyer Datuk Sulaiman Abdullah's appointment as an ad-hoc prosecutor.
Najib's counsel Havinderjit Singh said the documents should be given in the interest of justice as the country already has laws like the Witness Protection Act 2009 and Whistleblower Protection Act 2010, to protect witnesses from being tampered with.
"These laws' existence [is] sufficient to ensure there would not be any witness tampering.
"Furthermore, the defence had already received 26 witness statements from the prosecution and my client (Najib) had not asked to see any of them. Hence, what is the fear there as the witnesses are given protection," he added.
He noted that a provision in the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) and another in the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities Act 2001 (AMLATFPUA) are not fair to his client, as they allowed the prosecution to withhold any documents which can be accepted straight away by the court without any question.
He added that the defence are given pre-trial documents under Section 51A of the Criminal Procedure Code (CPC) but not all the documents, and hence, Najib's rights could be prejudiced.
Havinderjit said Najib had given his defence to the prosecution under a requirement of Section 62 of the MACC Act, and hence, with the defence not being given all the documents, they are put in a disadvantageous position.
Lead counsel Muhammad Shafee Abdullah told the apex court that when he represented former Selangor menteri besar Tan Sri Muhammad Muhammad Taib in Australia for false declaration of currency, the defence was given the whole documents after his client was charged, and he is hoping this could be practised here.
Meanwhile appointed prosecutor Datuk V Sithambaram said the prosecution has fulfilled conditions under Section 51A by giving all documents that they want to use to prove the case against the former premier.
That is already sufficient, he told the defence.
"What the defence is asking (is for) us to produce all the witness statements and documents and this is not proper as this can be done during the course of the trial," he added.
Sithambaram maintained that Najib's rights are not violated as the accused can change his defence to what he has stated under Section 62 of the MACC Act. This can be done during the trial after the evidence is adduced.
"This is allowed for and the defence could also ask (for) further documents during the trial," he said, adding that the issue of witness tampering is real.
With the end of submissions today, the bench will decide on Wednesday these issues:
- whether the public prosecutor needs to disclose the terms of employment of an ad hoc prosecutor
- whether the court can grant a pre-emptive gag order against discussing the SRC International case
- whether the attorney general has the constitutional right to withdraw the Section 418A transfer certificate after he had tendered it and cause the case to be transferred to the high court, and
- whether the accused is entitled to all witness statements or documents obtained in the course of the investigation for preparation of the course of his defence.
The other judges sitting with Malanjum are Chief Judge of Malaya Tan Sri Zaharah Ibrahim, Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah, and Federal Court judges Tan Sri Ramly Ali, Datuk Tengku Maimun Tuan Mat, Tan Sri Idrus Harun and Datuk P Nalini.