PUTRAJAYA (March 15): Ex-premier Datuk Seri Najib Razak's lawyer Tan Sri Muhammad Shafee Abdullah told the Court of Appeal today that his client wanted another judge to hear his criminal breach of trust and abuse of power case in relation to SRC International Sdn Bhd or that he be given a discharge not amounting to an acquittal.
This follows questions surrounding the prosecution's move led by Attorney-General (AG) Tommy Thomas to withdraw its transfer request made under Section 418A of the Criminal Procedure Code for the case to heard at the High Court. Muhammad Shafee said the prosecution is now utilising Section 417 of the same code.
Muhammad Shafee said the proper procedure following the withdrawal of the certificate was for the case to be brought back to the Sessions Court in Kuala Lumpur and not remain at the High Court.
He said since Najib was charged at the Sessions Court last July 4, no plea was taken from him there, as the AG applied to transfer the case under Section 418A straight to the High Court.
This resulted in the former premier's plea being only taken at the High Court initially, before judge Datuk Mohd Sofian Abd Razak.
However, Sofian was later replaced by Justice Mohd Nazlan Mohd Ghazali, who again took Najib's plea when the case was mentioned before him.
The change in judges followed the discovery that Sofian's brother is Pahang Umno state executive council member Datuk Seri Mohd Soffi Abdul Razak.
On Feb 7 this year, Muhammad Shafee said Thomas withdrew the certificate and wanted to use Section 417 of Criminal Procedure Code.
Today, Muhammad Shafee said: "The proper procedure following the withdrawal is for the case to be brought back to the Sessions Court, as it was initially registered there. It should not be Justice Nazlan deciding there to accept the withdrawal and straight away deciding to hear the case, which was then fixed for trial on Feb 12 before him.
"We wanted to raise the issue but was prevented by the court and the judge [from doing] so, as we told the court should fix another day to hear our side after doing some research. The decision by the judge to go ahead and decide is a violation of my client's right to natural justice.
"To make matters worse, Nazlan wrote a second judgment on his decision to preside in the trial and also touched on his previous decisions (on the gag order, not allowing further documents from the prosecution to be supplied to the defence and the appointment of senior lawyer Datuk Sulaiman Abdullah as a prosecutor."
Muhammad Shafee claimed that what Nazlan did was not only wrong but also unconstitutional, as a judge cannot have two different judgments on a matter.
"The law forbids the second judgment when the first judgment is complete. The second judgment is illegal and unconstitutional," Muhammad Shafee said.
Muhammad Shafee further cited former Chief Justice Tun Arifin Zakaria's book and decision in a case, saying there should not be two judgments in a matter by judges.
Muhammad Shafee said: "Hence, what we want in the appeal with regards to this matter, is for Nazlan not to hear the case as he had acted wrongly by violating our rights to seek natural justice. Furthermore, he had usurped the powers of the Chief Judge of Malaya (CJM) in deciding himself to hear the case.
"What should be is that the case be transferred back to the Sessions Court, or it be brought before the High Court registrar for the CJM to decide.
"The other option is for my client being granted a discharge not amounting to an acquittal and he be re-charged again. Those two are the proper procedures which should have been followed."
For these reasons, Muhammad Shafee, along with co counsel Havinderjit Singh, applied for Najib's appeal to be allowed.
Thomas will submit on Monday, the prosecution’s reasons for the withdrawal of the certificates of transfer, during a hearing before a three-member panel led by Datuk Zabariah Mohd Yusof. The other two judges are Justice Datuk Rhodzariah Bujang and Datuk Lau Bee Lan.