PUTRAJAYA (Feb 20): Datuk Seri Najib Razak’s lead counsel, Tan Sri Muhammad Shafee Abdullah, told the Federal Court that the earlier bench that heard the former prime minister’s main SRC International Sdn Bhd appeal made a fundamental error in law by not allowing the adjournment of the trial and then not allowing counsel Datuk Hisyam Teh Poh Teik to discharge himself.
Shafee argued that this effectively resulted in Najib being as if without legal representation at the apex court in his appeal proper.
He added that the court should have allowed the adjournment, after the bench, which was led by Chief Justice Tun Tengku Maimun Tuan Mat, decided to dismiss Najib’s earlier application to adduce more evidence, owing to questions pertaining to then trial judge Datuk Mohd Nazlan Mohd Ghazali.
The senior counsel said the adjournment would have given Hisyam time to prepare himself better as the SRC case was fairly complex, and Hisyam had clearly indicated to the court that he needed two to three months to prepare for the case.
Shafee said everyone knows Hisyam’s reputation, and he would not take on a case of the main appeal if he was not prepared.
He cited various case laws, including the Maria Herthog or Natrah case in Singapore, which resulted in racial riots after the court did not allow an adjournment because her then husband Mansor Adabi was not able to make it in court due to an accident. The non-granting of an adjournment was seen as a miscarriage of justice, said Shafee.
Shafee said Hisyam had applied for an adjournment on Aug 16, the first day of the appeal hearing, and again on Aug 18, when the apex court asked him to continue.
Subsequently, the lawyer said Hisyam tried to discharge himself as he was not prepared to argue the case, but the apex court disallowed him from not representing Najib.
Shafee said Hisyam knew it would be a breach of his legal obligation if he were to continue to conduct the appeal, when he should have always come prepared in conducting the appeal.
The senior counsel also pointed out that solicitor general Datuk Ahmad Terrirudin Mohd Salleh did not object to the adjournment, but despite this, the apex court still directed the case to continue.
'Hisyam was in court but not in any effect to represent Najib'
“The Federal Court enforces Hisyam that he should remain as a counsel although he has indicated that he is totally ineffective. Hisyam said he had not read the papers from the Court of Appeal. It is a fundamental error by the apex court to allow the counsel to remain behind on board representing Najib.
“This goes against every rubric of the law against natural justice and rule of law to ask Hisyam to remain behind or on board to represent Najib. Hisyam remains in court but this court should consider that he (Hisyam) was not in any effect to represent Najib (at that point),” he said, adding that Hisyam could not effectively represent the former PM.
Shafee said the court should treat Najib as not being represented at the Federal Court hearing last August.
“In the face of no representation by counsel, as Hisyam was just there at the direction of the court not as a counsel. However, the previous bench does not want to allow the discharge as they do not want to be faced with an appellant (Najib) without counsel.”
He said the proper thing to do was to grant an adjournment for Hisyam to better prepare or grant the counsel a discharge.
“The presence of Hisyam was decorative, (and should be considered as) not sanctioned by the law. Hence, in this case the apex court should grant a [review] under Rule 137 of the Federal Court Rules.
“This is the very root of a fair trial,” he added.
Shafee said Najib had hence been declined his right of a proper representation throughout the appeal, and this violated the rule of law and natural justice.
Najib is currently serving 12 years in jail and fined RM210 million after the apex court on Aug 23 dismissed his appeal and upheld his conviction with regards to the SRC case.
He was found guilty of three counts each of criminal breach of trust and money laundering of RM42 million of SRC funds between Dec 26, 2014 and Feb 10, 2015. He was also convicted of abuse of power with regards to approving the Retirement Fund Inc (KWAP) loan of RM4 billion to SRC between August 2012 and May 2013.
Najib, formerly Pekan Member of Parliament, wants a review under Rule 137 of the Federal Court Rules 1995, which empowers the Federal Court — the apex court — to prevent an apparent injustice and possible abuse of the court process done by the previous bench in upholding the former PM’s conviction and sentence.
Shafee also told the bench — led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli — about the "hurried nature" of the Tengku Maimun bench in disposing the appeal as if to cater for the 15th general election.
However, ad hoc prosecutor Datuk V Sithambaram objected to such a notion and said this was not in evidence.
The bench, which also comprises Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzhariah Bujang and Datuk Nordin Hassan as well as Court of Appeal judge Datuk Abu Bakar Jais, will resume hearing the review on Tuesday.