KUALA LUMPUR (Nov 15): The prosecution in Datuk Seri Najib Razak’s 1Malaysia Development Bhd (1MDB) audit report tampering trial on Tuesday (Nov 15) said that should the High Court consider the overall conduct of the former prime minister from Feb 22 to 26, 2016, it would be concluded that he had done something that the law does not permit him to do.
Senior deputy public prosecutor (DPP) Datuk Seri Gopal Sri Ram said that Najib’s actions in wanting to see the 1MDB audit report before it was presented to the Public Accounts Committee (PAC) of Parliament, and asking for a number of changes to be considered, was an attempt to escape criminal prosecution and a civil suit in relation to the company.
“What business did Najib have with regard to the audit report prepared by the National Audit Department (NAD) for the PAC? It was a bid for him to avoid further prosecution and scrutiny with regard to 1MDB, where he was the chairman of the board of advisors and also by virtue of being the finance minister at that time,” Sri Ram said.
The senior DPP, who is also a former Federal Court judge, added that the prosecution had managed to adduce evidence to prove that Najib committed abuse of power by using his position for gratification, and to avoid action from being taken against him.
Sri Ram said that Najib had instructed his then principal private secretary Tan Sri Shukry Mohd Salleh to obtain the 1MDB audit report for his perusal before it was presented to the PAC.
“This follows in Shukry’s own words that he was afraid the report contained 'irrelevant' (ditulis bukan-bukan) matters. This audit report was not a usual annual audit report, but a special audit report that was specifically prepared for the PAC, without which we cannot get P81 (the original unaltered audit report).
"This was a special audit, and former auditor general Tan Sri Dr Madinah Mohamad reinforced it when she said that it was supposed to make its way to the PAC, but it was prevented from going there. Why this not presented was due to the accused being scared. And what was he afraid of proves mens rea (criminal intention) to avoid action from being taken against him,” Sri Ram said.
He said that was the reason why Najib had summoned the then chief secretary to the government, the late Tan Sri Dr Ali Hamsa, and also former auditor general Tan Sri Ambrin Buang.
“Najib had no business, no power to summon the auditor general [before the report] was tabled before the PAC,” said the senior DPP, who was submitting at the end of the prosecution’s case, in which Najib is accused of having abused his power between Feb 22 and 26, 2016, in causing the alteration of the 1MDB audit report at the Prime Minister’s Department.
Former 1MDB president and chief executive officer Arul Kanda Kandasamy, on the other hand, is charged with abetting Najib.
No abuse of power, says Shafee
Najib’s counsel Tan Sri Muhammad Shafee Abdullah, meanwhile, said his client did not abuse his power, as what he and Arul Kanda did was to ensure that their views were incorporated in the audit report before it was tabled before the PAC.
This included the removal of two financial statements with regard to 1MDB, which the NAD agreed should not have been made, and subsequently removed as 1MDB wanted to lodge a separate police report over it.
“Being the minister in charge of finance, surely Najib had the right to have a say in the final report. Ambrin, a prosecution witness, also testified that he did not feel pressured in having to make the changes,” added Shafee.
The senior lawyer said as 1MDB was the auditee, and Najib the then finance minister, he — like Arul Kanda — should be allowed to express his views.
It is a practice in the NAD, Shafee said, where the auditee can request a clarification to be made.
“There is nothing wrong here to suggest otherwise,” the lawyer added.
Shafee also questioned the prosecution’s move to amend Najib’s abuse of power charge three times. He questioned the prosecution's contention that Najib had abused his power, as Ambrin under cross-examination did not say that Najib asked him "to drop this or drop that".
Shafee said the abuse of power charge should be seen in the context of former deputy prime minister Datuk Seri Anwar Ibrahim’s 1998 charge, where the current Pakatan Harapan chairman was found guilty of unlawfully using his position to instruct two officers to work on the retraction of allegations of sodomy to save himself.
The lawyer said that Najib had not taken matters into his own hands, and for these reasons, given that there are doubts over the prosecution's case, the High Court should side with the accused.
“The court has to take into consideration whether it is safe to call the former PM to enter his defence, should he and Arul Kanda choose to keep quiet, when there are still doubts lingering. The defence says Najib’s defence should not be called,” Shafee said.
Lawyer says Arul Kanda entitled to indemnity
Datuk N Sivananthan for Arul Kanda, meanwhile, pushed for the court to indemnify his client, as Arul Kanda had testified willingly for the prosecution.
The lawyer said the court had to decide whether Arul Kanda had assisted in making a “true and full discovery” in the case. Sivananthan argued that his client — the 15th prosecution witness — had done so, and therefore a certificate of indemnity should be issued under Section 63 of the Malaysian Anti-Corruption Commission Act 2009.
Sivananthan said he was "dumbfounded" over the prosecution's stand that the former 1MDB CEO and president was "disentitled" from a certificate of indemnity.
The prosecution, in their written submission, claimed that Arul Kanda did not assist in making a full discovery, and further claimed that he was biased towards Najib.
Sivananthan, representing Arul Kanda, said this is unfair, and that there was no cross-examination of this issue.
"There was no application to treat him (Arul Kanda) as hostile, no application to impeach him. There was never a moment when he hesitated to give an answer, when the court ordered him to answer. To now say he has not been forthright [in giving his evidence]...it's quite unfair.
"You can't blow hot and cold...there was no challenge from anyone. You can't write a submission now and say that he had a bias towards Najib," Sivananthan said, adding that the alleged bias towards Najib was not backed up with facts.
Sri Ram, in addressing this, said the prosecution left it to the court’s discretion on whether the former 1MDB president should be given a certificate of indemnity, as the prosecution had purely aired their views on the matter.
“The court will have to decide on this issue,” he added.
High Court judge Mohamed Zaini Mazlan will decide on Jan 30, 2023 whether to acquit Najib of the abuse of power charge or call for his defence. The judge will also decide on whether Arul Kanda, who is accused of abetting the former PM, is entitled to an indemnity.