Lead prosecutor’s appointment in Najib's trial a client-solicitor privilege, court told

Datuk Seri Najib Razak is pictured leaving the court of appeal in Putrajaya March 11, 2019. — Picture by Hari Anggara
Datuk Seri Najib Razak is pictured leaving the court of appeal in Putrajaya March 11, 2019. — Picture by Hari Anggara

PUTRAJAYA, March 11 — The Court of Appeal (CoA) was told today that the Attorney General (AG) does not need to disclose private lawyer Datuk Sulaiman Abdullah’s appointment letter as lead prosecutor in Datuk Seri Najib Razak’s SRC International corruption case as it was a client-solicitor privileged communication.

AG Tommy Thomas, representing the Government of Malaysia as respondent and acting as public prosecutor (PP), said that the defence had no legal right to the documents as the accused has no legal interest in the matter.

“This is the fundamental point and the client-solicitor privileged communication is protected under Section 126 of the Evidence Act which cannot be interpreted to be that it applied to all clients in Malaysia except the (Malaysia) government.

“They have no legal right to the documents. Nobody, the court or adverse party has business to look into the relationship between lawyer and client.

“That is the crux of the legal profession. We (prosecution) have no legal right to ask for their (defence) appointment letter to their client either,” he said in his submission.

Appellate judge Datuk Zabariah Mohd Yusof who led a three-member bench including Datuk Lau Bee Lan and Datuk Rhodzariah Bujang presided over the hearing.

Tommy said, for example, the prosecution never requested lawyers to reveal their letter of appointments from their clients.

“Similarly, the plaintiffs’ counsel never questioned the lawyers from the other side to prove they had been engaged by the defendants, unless one had not renewed the annual practising certificate,” he said.

He pointed out that the requirement of producing the letter also went against the Legal Profession Act.

“There is no legal right in our adversarial system whether its civil or criminal proceedings...there is no legal right for any adverse parties to ask for the production of the appointment letter.

“It is as simple as that...if there is no legal right then you can’t ask for it,” he asserted.

Furthermore, Thomas said a media release was issued to make public the appointment of Sulaiman and the authenticity of the statement was not disputed by Najib.

The High Court had in a previous ruling pointed out that the media release, which bored Tommy’s name, made it crystal clear that Sulaiman was to lead this case.

Lawyer Harvinderjit Singh in representing Najib, said the appointment of ad hoc deputy public prosecutors (DPP) under Section 397 of the Criminal Procedure Code (CPC) must be produced in writing.

“If the court relies on external matters to the proceeding to take complaisant of it then they are making a mockery of the law.

“What is critical is the CPC itself specifies it must be in writing,” he said.

On the issue that the appointment letter was being classified as an official secret, Harvinderjit asked whether it was a ‘threat’ to national security to reveal the contents after the defence had asked for it to be produced initially.

“What is mind-boggling is that...something as simple as that can be marked as OSA.

“If he (PP) is the sole authority who is empowered to produce that document, then he must be the sole authority that can classify it under Official Secrets Act (OSA).

“It’s (fiat) not something that can contain things related to national security. Why is there subterfuge? Why is this case where the executive holds everything close to their chest and claim OSA?” he asked.

The High Court had on December 18 dismissed Najib’s challenge to Sulaiman’s appointment as lead prosecutor, saying that it lacked merit.

High Court judge Mohd Nazlan Mohd Ghazali said there was no legal requirement for the prosecution to do so as the instrument of appointment is only required to be shown to the court and not the accused.

Lawyer Tan Sri Muhammad Shafee Abdullah who also represented Najib, said Sulaiman’s appointment made him a public officer and thus must be disclosed.

“His (Sulaiman) appointment is of public interest and my client (Najib) wants to know who is prosecuting him.

“The client-solicitor relationship only applies to lawyers and not to a deputy public prosecutor. To be appointed ad hoc, one must be fit and a proper person who must belong to the AGC,” he said.

Tommy then argued that the issue of fiat only arise if there was a reason to believe a barrister who appeared in court did not possess a valid practising certificate for that year.

“He is a public servant for this (SRC) case only. He needs not to show the document. I as the PP need not to reveal anything as you do not gazette ad hoc DPP appointments,” he said.

Lawyer Siti Kasim also held a watching brief for the Malaysian Bar.

The hearing resumes tomorrow morning at 9am.

The CoA previously granted Najib’s request to stay or temporarily pause the trial, until the court decides the outcome of his appeal on the withdrawal of the transfer certificate.

Since being charged in July last year until now, Najib’s lawyers have also filed three applications, namely for a gag order to prevent public discussion of the trial (filed July 18), discovery of documents from the prosecution (filed on October 2) and also for the prosecution to produce Sulaiman’s letter of appointment (filed on November 26).