PUTRAJAYA (April 4): Attorney General Tommy Thomas said it is not the court's job to prepare directions for imposing a gag order to ensure there is no sub judice or adverse comments made in the SRC International Sdn Bhd trial of the former Prime Minister Datuk Seri Najib Razak, who is alleged to have received RM42 million by giving a Government guarantee for an RM4 billion loan.
Thomas said this at the Federal Court in the hearing of one of Najib's three appeals, namely wanting a pre-emptive gag order on the media and people from discussing the trial before a seven-member bench led by Chief Justice Tan Sri Richard Malanjum.
The AG said while the Court of Appeal tried to help draft such an order with the help of Najib's lawyers and the prosecution, it had resulted in five paragraphs.
"These paragraphs were very long and ran half a page. In the end it ran to three pages which the Appellate Court found not to be practical. For this reason, the Appellate Court dismissed the appeal and the entire motion by the defence," he added.
"It is not the court's job to help draft such directions as these should be made by Najib's lawyers."
The AG said the defence agreed they did not meet the threshold to have a gag order imposed as Malaysia does not have a jury system but a trial judge.
"The purported directive given by the trial judge (Justice Mohd Nazlan Mohd Ghazali) is not directions in the judgment but merely noting what the defence wanted," he said.
Besides the gag order and what the defence claimed as a breach of natural justice in Nazlan's actions to transfer the case to himself following the prosecution's withdrawal of the Section 418 Criminal Procedure Code certificate, the former premier also wants the Apex Court to order the prosecution to give more documentation regarding his case.
The prosecution is meanwhile appealing on having to produce the appointment letter to senior lawyer-cum-appointed prosecutor Datuk Sulaiman Abdullah.
Najib's lawyer Havinderjit Singh pointed to Thomas' opening statement as an example of the need for a gag order.
"In his opening speech, the AG described what the purported money was allegedly used for... what expenses that are not stated anywhere in the seven charges. This is improper," he cited in the conduct of the prosecution.
The lawyer was referring to Thomas' statement that monies were used from the RM42 million deposited in Najib's account for purchases in Chanel in Honolulu, renovations to his home in Langgak Duta and Pekan, where he is a Member of Parliament and paying BN coalition parties.
The trial began yesterday with the first witness from the Companies Commission Malaysia testifying.
On the withdrawal of the Section 418A certificate and the decision by Nazlan to have the matter heard before him, Thomas said it was correct as he was using his inherent jurisdiction and cited three case laws that supported that the move was right.
"Has the defence provided any authorities (case laws) to say they are right? There is none," he stressed.
Najib's lead counsel Tan Sri Muhammad Shafee Abdullah told the bench that the proper way to do following the withdrawal of the certificate was to put the case to the Sessions Court and that the former Premier be given a discharge not amounting to an acquittal.
Shafee said there was a violation of his client's right to natural justice when the court did not allocate time for them to do research for submissions.
Regarding Sulaiman which the prosecution is appealing, Thomas said although it may be academic as they had handed the senior lawyer's appointment or fiat, they are appealing it as a matter of principle.
"It is improper for a third party to ask for the appointment letter of the other side. It is akin to the prosecution asking the defence to show their letter of appointment," he said.
The hearing continues tomorrow over Najib's final appeal to get further documents.
The other judges sitting with Justice Malanjum were 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.