This article first appeared in The Edge Malaysia Weekly on March 27, 2023 - April 2, 2023

WILL former prime minister Datuk Seri Najib Razak get another shot at proving his innocence in the SRC International case?

Come March 31, a five-member Federal Court bench, led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, will hand down its decision on Najib’s review application of an earlier apex bench’s decision to uphold his conviction and 12-year jail sentence and RM210 million fine.

The review bench also comprises Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhozhariah Bujang, Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais.

Najib could be released on bail for a retrial or continue to serve his time behind bars in Kajang prison, where he has been incarcerated since Aug 23 last year.

Should the five-member bench dismiss the review, it would mean that his conviction and sentence are therefore safe and affirmed, and that he can only be released if a pardon is granted by the Yang di-Pertuan Agong.

However, should the bench either unanimously or by majority allow the review, it may decide whether to release the former prime minister pending bail for the court to rehear his appeal at the Federal Court, or order a rehearing of the SRC case back in the High Court, where he had earlier been convicted. The High Court’s decision was unanimously upheld by Court of Appeal judges Abdul Karim, Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera.

The previous apex bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, also included then Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim (now Court of Appeal president) and three Federal Court judges, namely Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.

Najib’s review application is based on four grounds, as filed by his lawyers Messrs Shafee & Co:

•    A review of the Federal Court’s earlier decision to reject the defence’s application to adduce further evidence concerning trial judge Datuk Mohd Nazlan Mohd Ghazali;

•    A review of the court’s decision on the same day to dismiss his bid to postpone his appeal hearing;

•     A review of its decision on Aug 23 to reject his application to recuse Chief Justice Tun Tengku Maimun Tuan Mat; and

•     A review of the decision by the five-member bench to affirm Najib’s conviction and sentence.

Throughout the six-day hearing of the review application that began on Jan 19, the defence focused mainly on two issues — the decision not to grant a postponement to Najib’s appeal hearing last August and the refusal of Tengku Maimun to recuse herself from leading the bench.

As a result of the two issues, Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah argued that his client’s right to a fair hearing was violated and that there was a breach of natural justice.

He also contended that Najib seemed “unrepresented” in the final appeal when then lead counsel Datuk Hisyam Teh Poh Teik tried to discharge himself after failing in his bid to adduce further evidence on the Nazlan issue but failed. Hisyam then decided not to submit the appeal.

The apex court has wide power to reopen, rehear and re-examine its previous decisions, judgments or orders on its merits in order to prevent injustice and/or abuse of the process of the court as stipulated by Rule 137 of the Federal Court Rules 1995.

“For the removal of doubts, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.”

Messrs Zaid Ibrahim Suflan and TH Liew (ZIST) replaced Shafee’s firm as solicitors last July, a month before the scheduled appeal hearing date at the Federal Court. ZIST indicated it would focus on the Nazlan issue first, and in the event of failure, they would seek an adjournment. It indicated that it would bring a fresh perspective to the appeal.

The Federal Court indicated twice during case management that it would not entertain an adjournment, and the prosecution during the review hearing pointed to two letters from the registrar which had made this clear.

In the so-called Nazlan issue, the defence tried to raise the trial judge’s alleged conflict of interest in presiding over Najib’s case, as he had previously worked at Maybank as its general counsel and purportedly had dealings with 1Malaysia Development Bhd before being a judge. (SRC was a wholly-owned subsidiary of 1MDB).

However, the apex court bench led by Tengku Maimun dismissed the defence’s application as it failed to see how any of the proposed additional evidence related to Najib’s abuse of power charge is connected to the judge. The prosecution also pointed out that Maybank (Maybank Investment Bank Bhd) was not involved in the establishment of SRC in the manner suggested by the defence.

“Even if Maybank was involved, the question is how is it and by extension Justice Nazlan’s involvement in any way material to the question of abuse of power on the part of the applicant as the prime minister and/or minister of finance?

“There is no basis to suggest that Nazlan’s professional involvement in Maybank may affect the findings. We are not in any way convinced that Nazlan’s finding denotes a biased judge or [that he] gained from his previous employment in Maybank,” the CJ said in the bench’s decision.

Shafee contended in his review submissions that there was no mala fide effort by the defence in the change of solicitors and counsel to delay the appeal, which had been fixed four months earlier.

He said there was bad blood between his firm and ZIST because the latter had taken over the case. He contended that Hisyam not being given an adjournment to prepare the main appeal could be considered an injustice to Najib.

The senior lawyer also pointed out that the prosecution and solicitor-general Datuk Ahmad Terirruddin Mohd Salleh had not objected to the adjournment last August and hence the postponement should have been given.

Furthermore, Shafee argued that the previous apex court bench was also wrong in not allowing Hisyam to discharge himself as counsel last Aug 18, as Shafee claimed Hisyam was entitled to do so based on the court’s practice directives.

As the SRC case involved 30,000 pages of notes of proceedings and the High Court and Court of Appeal judgments some 800 and 300 pages respectively, Shafee said more time was needed for the new counsel to prepare the case and the bench should have given him at least a month to prepare even though Hisyam had asked for three to four months.

Shafee further submitted that the previous bench did not deal with the 94 grounds of appeal.

During the August case, the bench did not grant the adjournment and did not allow Hisyam to discharge himself. However, it did allow Hisyam two to three days to prepare and submit. But on Aug 23, he elected not to and instead made an application to recuse Tengku Maimun.

Shafee argued in the review that the CJ should have recused herself based on a Facebook post by her husband Datuk Mohd Zamani Ibrahim a few days after the 14th general election that attributed Umno and Najib’s losses at the polls to 1MDB. The lawyer argued that the comment had influenced the CJ.

Ad hoc prosecutor Datuk V Sithambaram suggested that the previous bench could have recognised that this was a plot to delay the hearing of the appeal due to ZIST and Hisyam being informed earlier that there would not be any adjournment. He pointed out that it is the inherent jurisdiction of the courts to decide whether or not to grant an adjournment.

Sithambaram contended that Najib was the author of his own misfortune in deciding to change solicitors and counsel less than a month before the hearing date.

The prosecution also revealed that ZIST had obtained the notes of proceedings much earlier in June and should have been able to prepare for the case as this was disclosed by Datuk Zaid Ibrahim in an interview with Astro Awani.

Sithambaram said that looking at the circumstances, the previous apex court bench was right in not granting the adjournment and that there was no miscarriage of justice. He further stressed that the previous apex bench’s decision not to grant a postponement is not an appropriate ground for the court to grant a review.

“The August date was decided four months earlier and it was on the defence’s own insistence,” he pointed out. “The refusal by the Federal Court to grant an adjournment is an exercise of discretion by the court and not reviewable under Rule 137. The Federal Court’s decision not to grant an adjournment does not contravene Najib’s right under Article 5 of the Federal Constitution. The appointment of counsel of choice must be made taking into account the hearing dates and not to scuttle the hearing dates fixed some four months earlier.”

As lawyers, the defence ought to have alternate back-up plans if the first one — Nazlan’s application — was dismissed, Sithambaram argued, adding that ZIST should also not have misled Najib into thinking that an adjournment was a matter of right.

“Najib knew four months before the appeal hearing of the August date. You [Najib] are the author of your own misfortune [in this matter],” said Sithambaram.

In addition, the prosecution pointed out that Zamani’s Facebook post made in May 2018 had nothing to do with the SRC case or trial as Najib had not been charged yet, and the trial only kicked off in 2019.

In a separate matter, during proceedings, Shafee revealed the show-cause letters issued by the Advocates and Solicitors Disciplinary Board to Hisyam, Zaid, Liew Teck Huat and Rueben Mathiavaranam over their conduct in conducting the appeal.

It is against this backdrop that the five-member bench will decide on whether to allow the review or affirm the Aug 23 decision.

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