PUTRAJAYA, March 15 — Datuk Seri Najib Razak should either be released from his seven charges over RM42 million of an ex-1MDB unit’s funds and be charged again over the same matter, or have the High Court decide again on a dispute involving the procedure for the transfer of his case between courts, his lawyer said today.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that High Court judge Mohd Nazlan Mohd Ghazali should not proceed to hear Najib’s trial over the RM42 million, owing to the alleged breach of natural justice by the judge.
Najib had appealed against Mohd Nazlan’s February 7 decision to allow the attorney-general’s withdrawal of certificates to transfer the case from the Sessions Court to the High Court, as well as the judge’s decision to transfer the case from the Sessions Court back to himself as a judge in the High Court.
Shafee claimed that Mohd Nazlan could allegedly be seen as usurping the Chief Judge of Malaya’s powers to distribute and assign cases to High Court judges.
Shafee today said the Court of Appeal could order the issue of the transfer to be heard and decided again at the High Court, but before a different High Court judge.
Alternatively, Shafee said the Court of Appeal could order for a discharge not amounting to acquittal (DNAA) of Najib of his seven charges, with the attorney-general free to charge him again in the Sessions Court over the same offences and to then follow the correct procedure to have it transferred to the High Court.
“Either alternative, this matter can’t go on as it stands,” he later told the Court of Appeal.
Shafee later explained why the transfer matter should not be sent back to Mohd Nazlan to decide, claiming that Najib’s legal team were not given the opportunity to research for a few days in order to present full arguments on the matter that popped up on February 7.
“We have shown a breach of natural justice in a most fundamental way in two facets, one is not giving us time to submit and prepare when we were taken by surprise. There was no equalising of arms provided by the judge.
“Secondly, the judge had improved his judgment,” he added.
Shafee had argued that Mohd Nazlan had produced a subsequent 20-page written judgment on February 15, which allegedly contained matters that were not raised and additional reasons that were not provided previously.
Harvinderjit Singh, who is also a defence lawyer for Najib, highlighted the importance of the appeal here which he said will set a precedent for the Sessions Court and High Court nationwide in terms of criminal justice.
“These are very serious issues. It is not about this case. It’s about the future of the criminal justice system,” he said.
Today is the third day of hearing on the four appeals linked to Najib’s SRC International Sdn Bhd corruption case, with the trial that was initially fixed to start in the High Court on February 12 now put on hold.
The hearing was briefly paused today when it was made known that Najib had quietly slipped out for a toilet break without informing, with the judges later telling him that the hearing could in the future be paused if he indicated he needs to leave the courtroom briefly.
Shafee explained to the court that Najib had intended to not disrupt the court proceedings, later telling reporters that Najib was unaware that he could not leave the courtroom without notifying the judges.
“He is not a lawyer, he thought it’s polite for him to quietly go to the toilet then come back, don’t disturb the proceedings. He didn’t know that he cannot leave even for a minute, he didn’t know that, now that he knows, he can stand up and ask,” he told reporters.
The appeal hearing today started shortly after 8.30am, with defence lawyers presenting their arguments until about 11.40am when the attorney-general replied to the arguments.
The hearing today stopped at around 12.30pm, as all parties involved including the attorney-general and Najib, as well as the judges already had other matters scheduled in the afternoon.
Justice Datuk Zabariah Mohd Yusof, who chaired the Court of Appeal’s three-man panel, fixed the hearing to continue next Monday at 8.30am and told the lawyers that the hearing must end on that day.
Justices Datuk Rhodzariah Bujang and Datuk Lau Bee Lan also sat on the panel.
Najib’s son Mohd Norashman Najib was also present in the courtroom, while lawyer Cyrus Tiu Foo Woei held a watching brief for the Bar Council.
The four appeals
Today’s appeal matter regarding the transfer of Najib’s RM42 million case is crucial, as a separate panel at the Court of Appeal had on February 11 postponed Najib’s trial until this appeal is resolved.
But even after the Court of Appeal decides on this appeal, the dissatisfied party can still further appeal to the Federal Court. (More information on this appeal can be found in this story previously published by Malay Mail: Najib’s trial: Why it was postponed and how soon it can start)
This appeal on the transfer matter is part of four appeals that the Court of Appeal was scheduled to hear from March 11 to March 12, which was extended to today and now next Monday.
The Court of Appeal has already heard the three other appeals from Najib over his unsuccessful applications for a gag order to prohibit the media from discussing the merits of his criminal cases; his application to be given certain documents from the prosecution; and his challenge on the appointment of senior lawyer Datuk Sulaiman Abdullah as the lead prosecutor in the RM42 million case.