KUALA LUMPUR, Dec 13 -– The High Court today allowed former prime minister Datuk Seri Najib Razak to inspect the cache of documents on 1Malaysia Development Berhad (1MDB) that whistleblower Xavier Andre Justo had last year provided to the Malaysian Anti-Corruption Commission (MACC).
High Court judge Collin Lawrence Sequerah granted Najib’s application, based on several reasons including that the documents that Najib wanted to look at were relevant to his defence in his corruption trial over the 1MDB scandal.
Sequerah noted that the documents that Najib wanted to be disclosed is not based on hearsay, as such materials do exist and had been received by the MACC from Justo.
The judge also said that Section 65 in the MACC Act that protects the identity of informants is not applicable in this case, as the MACC did not deny Justo’s identity.
Commenting on Section 124 of the Evidence Act where public officers are not to be compelled to disclose information that is given confidentially if the officers believe that public interest would be affected due to such disclosure, the judge said the court could decide on the prosecution’s claim of the information being privileged information.
“I do not find anything to substantiate that public interest will suffer from such disclosure,” the judge said.
The judge also noted that Najib had specified what information he was looking for in Justo’s cache of documents, referring to Najib’s bid for information on the 1MDB-PetroSaudi International Ltd joint venture.
“The classes of the document sought for have been sufficiently identified and categorised by the applicant. It is therefore not in the nature of a fishing expedition.
“I also find sufficient basis that material sought for are relevant to the defence,” he said when reading the brief reasons for his decision after over an hour of hearing arguments from both sides.
The judge also noted that these reasons were non-exhaustive.
Access to Justo cache
On October 16, Najib had applied for a court order to compel the prosecution or any other entities — that have the “custody, care and control” of documents surrounded by Justo to MACC in relation to 1MDB’s joint venture with PetroSaudi International Ltd — to make available these documents — either in its physical form or as retrieved from a digital storage device — for Najib for “inspection”.
Alternatively, Najib wanted the court to give an order to compel the prosecution or any other entities having the custody and control of these documents “to produce and provide” them to Najib.
The judge today granted the order only for Najib to be allowed to “inspect” the cache of Justo documents, with three weeks fixed for the materials to be handed over for inspection.
Lead prosecutor Datuk Seri Gopal Sri Ram said he was told that the pendrive contains about 17,000 documents from Justo, adding that he intends to pass Najib’s lawyers the entire pendrive if the prosecution does not appeal.
“My advice would be that if there is no appeal, then my advice to those instructing me would be to just hand the pendrive so they can sit and go through it,” he said.
The 1MDB trial where Najib is facing 25 charges had started on August 8 and hearing had gone on for more than 30 days, with nine prosecution witnesses testifying so far.
The trial will only resume next year as there are no more hearing dates scheduled this year, with January 7 fixed as the case management for the trial.
What the lawyers argued
Earlier today, Najib’s lawyer Al Firdaus Shahrul Naing argued that the documents sought were relevant to his client’s defence and the facts that Najib wanted to prove, and that Section 65 does not apply as Justo’s identity had already been made public with MACC informing the media of his delivery of documents and Justo’s own media interviews on the matter.
Al Firdaus also argued that Section 124 does not apply as Justo has not asked MACC not to disclose his identity and that he had given such documents in the course of the authorities’ investigation, also saying that it has not been shown how public interest would be affected and also arguing that the court could decide if disclosure would harm public interest.
Al Firdaus argued that it was in the interest of justice to allow Najib access to Justo’s documents and that the application was not made with “malicious intent to delay” as trial dates have already been fixed, asserting that this was not a “fishing exercise” as they were seeking for specific documents on the 1MDB-PSI joint venture.
Sri Ram had, however, argued that Najib’s request to see the Justo documents was a fishing expedition and that the documents amounted to hearsay evidence.
Sri Ram also said that public interest may be affected as Justo documents could contain information related to other ongoing 1MDB cases.
Sri Ram further argued that it was “premature” to make such an application, saying that Najib should only ask for such documents after the prosecution has closed its case and if Najib has to enter his defence as the judge will then be able to evaluate the relevance of the Justo documents.
Al Firdaus however argued that Najib’s lawyers may need to recall witnesses if they wait after the end of the prosecution case to apply for the Justo documents, noting that the matters in the 1MDB trial are not those that “can be easily disposed of within a few days or few months”.
The judge had then decided to allow Najib’s application to inspect Justo’s documents.