This article first appeared in The Edge Malaysia Weekly on December 30, 2019 - January 5, 2020
1MDB-Tanore trial to drag on for another year
The country’s most powerful man at one time, who proudly exclaimed that he was one of the few leaders who had the privilege of playing golf with the then US president Barack Obama for five hours, will have to trade his golf buggy for a yellow cushion as he will be spending most of 2020 seated in the court dock reserved for accused persons.
The latter part of 2019 saw former prime minister Datuk Seri Najib Razak in the dock almost every day after his SRC International Sdn Bhd trial commenced in April. It was only adjourned for the year in December. As the trial will near its end in the first quarter of 2020, Najib and his legal team will have to shuffle from one court to another for the 1Malaysia Development Bhd (1MDB)-Tanore trial.
The trial sees Najib facing four counts of abuse of power for using his position as prime minister, finance minister and 1MDB board of advisers chairman to receive RM2.28 billion in gratification.
He is also facing 21 counts of money laundering involving over RM4.43 billion.
The trial, which kicked off on Aug 28 (while SRC was on a break) got off to a sluggish start as there were many protestations and appeals to delay the case. Najib’s legal team, led by Tan Sri Shafee Abdullah, had challenged the appointment of senior deputy public prosecutor Datuk Seri Gopal Sri Ram as prosecutor. In August, before the case commenced, Sri Ram was allowed to lead the prosecution in the trial.
The decision to dismiss Najib’s appeal was made by a seven-member Federal Court bench led by Chief Justice (CJ) Tan Sri Tengku Maimun Tuan Mat.
The appeal was on the grounds that Sri Ram’s letter of appointment, using a particular section, was invalid. Despite dismissing the appeal, the apex court bench allowed Najib’s application for the prosecution to produce to the court Sri Ram’s letter of appointment as a senior DPP.
The CJ announced its unanimous decision after hearing submissions on the issue for four hours.
Tengku Maimun, in her oral judgment, said there were two matters which needed to be decided by the apex court. The first involved Sri Ram’s letter of appointment while the second was the disqualification of his appointment as senior DPP.
In October, however, a three-member Federal Court bench led by Tengku Maimun allowed Najib to continue to challenge the appointment via a civil application when it granted leave to initiate a judicial review challenge on the appointment.
Justice Tengku Maimun, in the unanimous decision, said the apex court is satisfied that this present application for judicial review is different from the criminal application on the same matter.
High Court trial judge Collin Lawrence Sequerah dismissed the application and ordered the case to start on Aug 28 despite the appeals. Although the case has commenced, the KL High court has set March 9, 2020, to hear Najib’s judicial review on the matter.
Prosecution also seeks delay
On Aug 13, the Federal Court upheld the Court of Appeal’s decision to reject an application to review the High Court decision not to allow the postponement of the 1MDB trial. Leading the prosecution was Attorney General Tan Sri Tommy Thomas, who made a last-ditch attempt to delay the commencement of the case.
Thomas had said the prosecution wanted to postpone the trial until Najib’s ongoing SRC trial was completed.
Sequerah had also previously quashed Thomas’ three applications to postpone the trial.
The case commences
On Aug 28, the case began in a packed courtroom, with Sri Ram reading his opening statement.
He highlighted how Najib played a pivotal role in amending the 1MDB memorandum of articles of association in order to put him in a position of control of the company in a bid to enrich himself.
Sri Ram said there were four phases to the transaction that resulted in the massive amount of RM2.28 billion ending up in Najib’s AmBank accounts. Central to the scheme was Penang-born businessman Low Taek Jho or Jho Low, whom Sri Ram described as a “fugitive of justice”.
“The prosecution will prove that the accused (Najib) by his words and conduct made it clear to 1MDB’s officers, its board and others that Jho Low was his alter ego.
“In truth, Jho Low was the accused’s mirror image. The prosecution will establish facts which will give rise to an irresistible inference that Jho Low and the accused acted as one at all material times,” the former Federal Court judge said in his opening statement to the case.
He further pointed to the four phases, the first of which occurred during the formation of 1MDB’s precursor, Terengganu Investment Authority (TIA), in 2010.
Najib’s former aide, Datuk Amhari Efendi Nazaruddin, one of the key prosecution witnesses, initially disagreed that the Terengganu Investment Authority (TIA) was mooted by Terengganu ruler Sultan Mizan Zainal Abidin when he was the 13th Yang di-Pertuan Agong. Amhari, 43, insisted that TIA, which later became 1MDB, was Najib’s “baby”.
However, his view changed during cross-examination, when he was shown several documents, including the Cabinet meeting minutes that had been declassified and TIA meeting minutes, saying it was not Najib, but Sultan Mizan who had suggested the formation of TIA.
Shafee showed the witness Cabinet meeting minutes dated Dec 12, 2008, discussing a proposal to form the sovereign wealth fund with RM10 billion as announced by Sultan Mizan, who had met then-prime minister Tun Abdullah Ahmad Badawi before the Cabinet meeting.
Part of the funding would come from the issuance of bonds and the rest from Terengganu’s future oil revenue. Shafee further read that the formation of TIA was to ensure the state continues to receive some form of revenue should its oil wells dry up.
Further drama unfolded as Thomas sought to initiate committal proceedings against Umno Supreme Council member Datuk Lokman Noor Adam for contempt of court acts, perpetrated on two occasions on Sept 25.
In the application, the AG sought an order for Lokman to be committed to prison or fined for his actions. The AG said on that date (Sept 25), the respondent in a video interview uttered words constituting an express or implied threat against Amhari.
The AG said he would play the said video recording at the hearing of the application for leave and at the hearing of the substantive motion in the event leave was granted.
The High Court set Jan 9, 2020, to hear Lokman’s application to set aside the leave committal proceedings against him.
Another highlight witness in the case was 1MDB’s former CEO, Datuk Shahrol Azral Ibrahim Halmi, who made some startling revelations about how the sovereign fund was run.
He likened Najib to an “emperor” in 1MDB, stating that his word was final as he “was the boss”.
Shafee had begun his cross-examination of Shahrol, going through his witness statement with a fine-tooth comb. Shafee also accused Shahrol of lying to Najib about a US$1 billion investment in a joint venture with PetroSaudi International Ltd (PSI).
Separately, the High court allowed Najib’s lawyers access to inspect 17,000 documents given by whistleblower and former PetroSaudi International Ltd (PSI) executive Xavier Justo.
They claimed that this would aid in their defence of Najib when cross-examining the prosecution witnesses.
The case had to be adjourned to January to enable Najib to enter his defence in the SRC International Sdn Bhd trial. Shahrol will take the witness stand again in the New Year to finish off his cross-examination by Shafee.
The prosecution has some 51 witnesses that have yet to testify. The High Court has set tentative trial dates that will see Najib in court till August 2020 at the very least.
The tentative trial dates previously fixed are Jan 7 to 9, 13 to 16, 20 to 23; Feb 3 to 6, 10 to 13, 17 to 20; March 9 to 12, 16 to 19, 23 to 26, 30 to 31; and April 1 and 2.
The new dates added by Justice Sequerah were May 4 to 6; June 1 to 4, 8 to 11; July 20 to 23, 27 to 30; and the whole of August except for Fridays. However, the January and February dates may make way for Najib’s SRC trial.
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