SRC conviction appeal: Najib’s pecuniary, personal interest during Cabinet meetings never arose, consistent with nominal position in Finance Ministry, says lawyer

PUTRAJAYA, April 27 — Datuk Seri Najib Razak’s pecuniary and personal interest in SRC International Sdn Bhd never arose when he chaired Cabinet meetings that approved two Government Guarantees (GGs) for the disbursement of RM4 billion from a government pension fund, the Court of Appeal heard today.

Najib’s lawyer Tan Sri Muhammad Shafee Abdullah said this during the appellant’s closing submission in Najib’s appeal hearing against the former prime minister’s conviction and jail sentence for the misappropriation of RM42 million in SRC International funds.

SRC International previously obtained two loans totaling RM4 billion from the Retirement Fund Incorporated (KWAP) through two GGs that Najib had signed off as prime minister (PM) and finance minister (FM) during two Cabinet meetings held in August 2011 and February 2012.

Shafee explained that this is because the interests Najib had as a shareholder was consonant with his nominal position as the Minister of Finance Incorporated (MoF Inc) under the Finance Ministry and is not held in his capacity as a natural person.

“His ability therefore to “control” SRC arises from his nominal capacity as MoF Inc and not out of any personal interest.

“Furthermore, it has been shown that the presence of controlling Articles (SRC’s Memorandum and Article of Associations or M&A) vis a vis the appointment of board directors of a government-linked company is not unprecedented,” he said.

The prosecution in its rebuttal to Najib’s appeal had contended that Najib’s presence at the Cabinet meetings led to the other members of the Cabinet unable to independently deliberate on the GGs as the appellant was their superior and was presiding over the meeting.

Shafee also said as the sitting Prime Minister of the government at the time, Najib was merely the chairman of the Cabinet or “a first among equals”.

“At the end of the day, the Cabinet made a collective decision. It is not a decision by an individual, the prime minister, finance minister or representative of MoF Inc,” he said, dismissing the prosecution’s contention that Najib had the intention to compel the Cabinet to approve the GGs when he sat in the meetings.

He added that it was, therefore, crucial for the prosecution to establish the element of Najib’s interest in SRC International as this forms the nexus between Najib’s participation at the two Cabinet meetings and the intended gratification of RM42 million.

Shafee argued that Najib’s interest was also not clearly spelled out in the abuse of power charge to mount an effective defence which severely prejudiced and handicapped his client.

As submitted previously in court, Shafee said Najib’s interest in SRC International has been displaced based on several evidentiary matters.

“DSN’s relationship with SRC was purely one held in a professional capacity as MOF Inc, hence is a case which falls under the exception provided under section 23(4) of the Malaysian Anti-Corruption Commission Act,” he said.

He also pointed out how the prosecution merged the functions of the PM and the FM in Najib’s abuse of power charge, before stating that the PM is irrelevant to the aforementioned charge with the sole exception of being the chairman of the Cabinet meeting.

This was because Najib participated in the first and second Cabinet meeting as the FM and did not declare his interest since the Finance Ministry was technically the sole shareholder — through MOF Inc — of SRC International.

“The position of the Prime Minister has no relevance in both meetings of the Cabinet.

“The prosecution has therefore again offended the duplicity rule in not stating precisely the status of Najib when he purportedly committed the offences under Section 23(1) MACC Act,” he said.

Thus, Shafee contended that Najib’s abuse of power charge was “wrong” and urged for the court to struck out the said charge.

In the RM42 million SRC International case, Najib was sentenced by the High Court to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.

However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently which he is now appealing against.

The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera resumes tomorrow.