Court dismisses Najib’s third bid to postpone 1MDB trial

This article first appeared in The Edge Financial Daily, on August 14, 2019.
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PUTRAJAYA: Datuk Seri Najib Razak’s bid to postpone the 1Malaysia Development Bhd (1MDB) trial beginning on Monday was dismissed by the Federal Court.

However, the five-member bench, led by Chief Justice Datuk Seri Tengku Maimun Tuan Mat, unanimously ruled that the defence and prosecution would have to take it up with High Court trial judge Justice Collin Lawrence Sequerah on Aug 19 itself over whether the trial will proceed or not.

This comes after Attorney-General Tommy Thomas told the court that the prosecution is withdrawing its appeal to seek an adjournment for Monday’s date for the 1MDB trial to begin.

“We are confident of finishing the prosecution’s case by this Friday [Aug 16],” he told the apex court bench.

He added that the prosecution will be handing over the witness statements for the 1MDB case to the defence today.

Under the law, the criminal trial can only begin 14 days after the defence receives the witness statements, which would be on Aug 29.

In her oral judgment, Justice Tengku Maimun said the bench agreed there was no error in the decisions made by Justice Sequerah and the appellate court.

“The only decision before this court is on the court’s discretion. We agree there is no error in law and hence there is no reason for us to intervene [on the appeal for postponement].

“We leave it to the parties to make the necessary application before the High Court on Monday. The appeal by the prosecution is struck out and the appeal by the defence is dismissed,” she said.

Sitting on the bench with Justice Tengku Maimun are newly-appointed Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah, and Federal Court judges Datuk Rohana Yusof and Tan Sri Idrus Harun.

It was previously reported that both the prosecution and defence would appeal as they both sought a postponement of the 1MDB trial, otherwise known as the Tanore case, before the AG made the decision to withdraw the motion.

 

Prosecution’s withdrawal caught defence by surprise

The decision by the apex court bench follows a decision by a seven-member bench last week that was also led by Justice Tengku Maimun to dismiss Najib’s appeal to disqualify former Federal Court judge Datuk Seri Gopal Sri Ram from leading the prosecution.

Najib’s leading lawyer Tan Sri Muhammad Shafee said they were caught by surprise over the prosecution’s withdrawal, as the defence was under the impression that both parties had agreed to it.

Nevertheless, the senior lawyer told the bench that they never agreed to Aug 19 and that this was violating Najib’s right to counsel and a fair trial.

 

“I told the High Court that we are only agreeable to have the trial start in October as after the prosecution finishes its case, we have to prepare written submissions on whether the defence would be called or otherwise.

“As my client only has one team handling all the cases, the court cannot expect that if the prosecution finishes the SRC case on Friday, we would not be busy and it is alright to start the 1MDB case on next Monday. We have to prepare the written submissions and hence, it is not that we are free as there is work to be done,” he said.

Muhammad Shafee said his client faces four criminal cases, and he could not determine which trial would proceed first, as well as the durations of each trial.

“By not allowing a postponement, this would affect my client’s right to a fair trial and right to counsel, as the prosecution seems to have different teams handling the cases. However, for us it is one [team] with me as the lead counsel,” the senior lawyer said.

When Justice Tengku Maimun and Justice Wong pointed out that Justice Sequerah had written that parties can come to court on Aug 19 and appear before him to seek an adjournment, the counsel replied that it was difficult for them as the same team is preparing for each case.

This led to Justice Azahar saying that the High Court had fixed the dates five months in advance and hence, the defence should have worked something out to avoid this by bringing the matter up earlier or making arrangements in advance.

Muhammad Shafee said the pace that the SRC trial is proceeding at, which had not seen any postponements, had also resulted in other cases involving the death penalty to be deferred, showing that this case was given priority.

“My client should have been given the right to a fair trial and right to counsel by giving us time to prepare the case,” he said.

Najib is facing 21 counts of money laundering and four for abuse of power in regard to 1MDB’s RM2.28 billion funds.

The trial had been put off three times in the past, hence why Justice Sequerah was not accommodating further requests for a postponement.

The appeal on the postponement was seen as unprecedented because both the prosecution and defence filed appeals over Justice Sequerah’s decision.