This article first appeared in The Edge Financial Daily on December 3, 2019

KUALA LUMPUR: For the first time in Malaysian history, a former prime minister is set to take the witness stand to defend himself against criminal charges in a court of law.

Datuk Seri Najib Razak will have the opportunity to tell his side of the story as he begins his testimony in the High Court today, after the court ruled that the prosecution had made a prima facie case against him on seven charges of misappropriating RM42 million of SRC International Sdn Bhd funds in 2014 and 2015.

According to the Criminal Procedure Code (CPC), a prima facie case entails that the prosecution has managed to adduce credible and sufficient evidence such that it can only be overthrown by evidence in rebuttal. If unrebutted or unexplained, it would warrant a conviction.

The Pekan member of Parliament was given three choices in entering his defence. He may choose to exercise his right to remain silent, make an unsworn statement from the dock (in which case he cannot be cross-examined by the prosecution) or testify as a sworn witness (in which case the prosecution can cross-examine him).

The CPC states that if the accused elects to remain silent, he must be convicted.

There will be no necessity to reevaluate the evidence in order to determine whether there is a reasonable doubt.

Najib’s lead counsel, Tan Sri Muhammad Shafee Abdullah, indicated earlier that his client has opted to give sworn testimony. This means that while Najib will be given the opportunity to present his side of the story, he will also be subjected to cross-examination by the prosecution.

This decision, however, may still be changed before the trial resumes today.

In any event, today will be significant as for the first time in the trial, Najib will address the court himself on the allegations against him.

‘Najib would not look good if he made unsworn statement’

Bar Council member Muhammad Rafique Rashid Ali explained that the trial has now entered the defence stage, whereby the defence will present its opening statement, outlining what its version of the case is.

This includes explaining how it intends to rebut the prosecution’s case as well as witnesses it may want to call.

On the difference between a sworn and an unsworn statement, Muhammad Rafique explained that the distinction lies in its weight of the testimony in the eyes of the court.

When one gives a sworn testimony from the witness box, the accused is liable to be cross-examined by the prosecution. Hence, Najib will face the onslaught of the prosecution led by appointed public prosecutor Datuk V Sithambaram.

“His demeanour will also be taken into consideration. All these carry weight,” Muhammad Rafique told The Edge Financial Daily.

In contrast, when the accused chooses to give an unsworn statement, the statement is read out from the dock and is not open to cross-examination. As such, the statement and its veracity cannot be tested under the weight of cross-examination.

“Hence [it will be] lower in weight,” Muhammad Rafique said.

“The judge at the very end will still need to sieve through the entire evidence, but when one chooses not to withstand the test of cross-examination it will be very telling on its veracity,” he added.

Senior lawyer Datuk Baljit Singh Sidhu told The Edge Financial Daily that giving a sworn statement will help uphold the truth of Najib’s defence, to show that he was unaware of the transaction that made it into his account.

“That would be his best way to vindicate himself. If he chose to give an unsworn statement, that would not look good on him.

In his judgement on Nov 11, High Court judge Justice Mohd Nazlan Mohd Ghazali moved that the prosecution had successfully established a prima facie case against Najib.

In the deliberation of his judgement for about an hour, Justice Mohd Nazlan notably devoted half an hour to the charge on the abuse of power. Najib also faces three criminal breach of trust charges and three money-laundering charges in relation to the alleged embezzlement of the RM42 million funds.

Besides being the prime minister, Najib also served as the finance minister and adviser emeritus of SRC when the RM42 million landed in his personal bank accounts.

The highest-ranked politician in the country to face criminal charges, Najib was charged on July 4 last year, and the trial began on April 3.

The trial, running for 58 days, saw 57 prosecution witnesses testifying against Najib.