PUTRAJAYA, Aug 16 — The Federal Court has today unanimously dismissed Datuk Seri Najib Razak’s legal team’s request to postpone hearing his final appeal against his conviction of misappropriating funds from SRC International Sdn Bhd that would send the former prime minister straight to jail for 12 years and pay a RM210 million fine if upheld.
The decision was handed by a five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat.
Tengku Maimun stressed that cases of this nature must be prioritised, adding that the time taken for this case, especially the number of dates fixed meant many other criminal cases and accused persons have had to wait their turn for their appeal to be heard.
Stressing further, Tengku Maimun said while the appellant is entitled to his right to change his counsel, he is not entitled to make this choice at the expense of the court, the prosecution or the entire justice system.
She then cited Article 8 of the Federal Constitution and the rule of law which demanded that the appellant be treated just like any other accused — that is equally under the law.
“Justice delayed in this case is also justice denied to other accused persons.
“For this reason, the appellant’s motion to adjourn and vacate his appeal for a period of three to four months is unanimously refused.
“That said, we are minded to start hearing for the appeal on Thursday, 9.30am. Court is now adjourned,” she said in the verdict delivered some two hours following lunch recess.
Court can grant adjournment when appropriate, but this is not one such case
In the unanimous judgment, Tengku Maimun said the court accepted unreservedly the notion that the right to a fair trial is part and parcel of the right to life and personal liberty guaranteed by Article 5(1) of the Federal Constitution.
While the court agreed that adjournment can be granted in appropriate cases where counsel is not ready to proceed for legitimate reasons, Tengku Maimun noted that this was not the case in the present matter.
Rejecting the defence’s request, Tengku Maimun asserted all parties in the case — including Najib as the appellant — were well aware since April that the appeals had been fixed for hearing and the request for an adjournment on the same ground had been refused by the court registrar during pre-trial case managements.
“The right of the accused to meaningful legal representation by counsel of his choosing is another important component of the right to a fair trial.
“This much is also apparent from Article 5(3) of the Federal Constitution but we hasten to add that this right is not absolute,” she said.
Citing Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules, the chief justice said a counsel should be deemed as “reasonably certain of being able to appear and represent the client on the required day” after having accepted a brief.
Accordingly, Tengku Maimun said the aforementioned Rule recognised the general disposition of the courts to disfavour adjournments unless cogent reasons are provided and that counsel shall make every effort to be ready for trial on the day fixed.
“The 1978 Rules are not, in a sense, binding on the courts. But they are nevertheless binding on members of the Bar who are obliged to comply with them.
“And they are indicative of the fact that any disciplined lawyer such as the counsel for the appellant would not have accepted a brief with dates already fixed for hearing unless he was prepared.”
Tengku Maimun further pointed out that Najib, having been well aware of the dates fixed for hearing, elected to discharge his former solicitors and appoint Zaid Ibrahim Suflan TH Liew & Partners and Tuan Hisyam Teh (Poh Teik) as his solicitors and counsel respectively.
“This is his right to do so but he cannot after having made that decision, turn around and say that his new lawyers are not ready to proceed with the hearing of the appeals.
“The new lawyers too, having accepted the brief, are not entitled to say they need more time to prepare knowing fully well that the dates had been fixed well in advance,” she noted.
Given the circumstances, Tengku Maimun said the request for the adjournment and the grounds in support thereof are neither cogent nor reasonable.
Leading the prosecution is ad hoc prosecutor V. Sithambaram who was assisted by deputy public prosecutors Donald Joseph Franklin, Sulaiman Kho Kheng Fuei, Mohd Ashrof Adrin Kamarul and Manjira Vasudevan.
The other four judges on the bench were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.
The Court of Appeal had on December 8, 2021 upheld the High Court’s July 2020 verdict and sentence of 12 years in prison and a fine of RM210 million meted against Najib.
Najib had been found guilty of one count of abuse of power, three counts of criminal breach of trust, and three counts of money laundering.
Hearing in the country’s supreme court has been scheduled to take place over nine days, starting yesterday till August 19 and will resume after this weekend on August 23 until August 26.