KUALA LUMPUR, October 13 — In an affidavit filed at the High Court in Kuala Lumpur by deputy public prosecutor Mohd Ashrof Adrin Kamarul, the prosecution objected to the bid by Datuk Seri Najib Razak to review the Federal Court’s decision that confirmed his guilt and sentence in the SRC International Sdn Bhd case.
Najib’s defence lawyers Zaid Ibrahim Suflan TH Liew and Partners (ZIST), who handled his SRC International Sdn Bhd appeal at the Federal Court, treated the whole process “complacently” and expected Najib to be “entitled to an adjournment”, said Mohd Ashrof.
In the affidavit, he argued that Najib’s counsel had expected their client to be “entitled to an adjournment” despite having clear instructions from the Federal Court that the appeal would be proceeding as scheduled on the given dates.
Mohd Ashrof pointed out that ZIST maintained blind confidence that they would have succeeded in their motions to adduce further evidence and the disqualification of trial judge Datuk Mohd Nazlan Mohd Ghazali prior to the main appeal hearing.
“Messrs ZIST and Tuan Haji Hisyam came to court expecting adjournment to be granted to the Applicant as a matter of right.
“However, Messrs ZIST was overly confident that the application for additional or fresh evidence would succeed and an adjournment would be allowed thereafter,” he said in the affidavit dated October 7, referring to lawyer Datuk Hisyam Teh Poh Teik.
ZIST, together with lawyer Datuk Hisyam Teh Poh Teik, took over the main SRC appeal in July, after Najib sacked Tan Sri Muhammad Shafee Abdullah as his lead counsel.
Mohd Ashrof further noted that Najib’s lawyers were complacent throughout the entire proceedings, evidently from the various case managements where the lawyers repeatedly expressed their intention to seek an adjournment even after being told the Federal Court would not grant such a request.
The prosecutor added that the Federal Court’s decision not to grant an adjournment cannot be perceived as punishing Najib since the decision was made on the fact that the case had been fixed as early as April for hearing in August.
Najib’s claim
In his claim filed on September 6, Najib sought a review of the Federal Court’s August 23 decision as he claimed that Tun Tengku Maimun Tuan Mat was conflicted when she openly defended Mohd Nazlan by making statements in the media even before the hearing of the judge’s disqualification application.
This, Najib claimed, amounted to a predetermination and a clear ground for conflict of interest.
Najib also said that his main appeal to set aside the conviction and sentence was disposed of in spite of the fact that his counsel did not submit in court at all due to the latter’s state of unpreparedness.
Najib further said the apex court failed totally to invite either parties, especially from his side, to submit on matters of the sentencing when the law demands a distinct and separate hearing for the same upon the Federal Court dismissing his appeal against the conviction.
Currently in Kajang Prison, Najib has been serving his 12-year jail sentence as a prisoner after the Federal Court upheld his conviction over the misappropriation of RM42 million of SRC International Sdn Bhd’s funds.
However, before a review can be heard, Najib will have to first gain leave (permission) from the Federal Court for the motion to have the review heard on its full merits.
A review can be heard under Rule 137 of the Rules of the Federal Court 1995, with the rule recognising the Federal Court’s inherent power to review its previous decisions in order to prevent an injustice or an abuse of process, and that it has been mostly used to set aside decisions by the Federal Court.
There are eight broad categories permitting a review, including where there was a coram failure; where the decision had been obtained by fraud or suppression of material evidence; and where there was a clear infringement of statutory law.
However, it must be noted that it is extremely rare that the apex court grants leave for a review as the threshold is high, where an applicant must prove that injustice has been done.
In asking for the motion to be dismissed, Mohd Ashrof said Najib’s application for review is devoid of merit and failed to provide the necessary justification to allow the Federal Court to exercise its power under Rule 137.
Mohd Ashrof said that once an appeal is finally disposed of at the Federal Court, the court has no power to grant a stay of execution of the judgement meted out.
“Rule 137 is not akin to an appeal and thus must be confined to the Rules of the Federal Court 1995.
“In any event, there are no exceptional or unusual circumstances apparent in the said application, which warrants the exercise of the Federal Court’s inherent jurisdiction to grant a review under Rule 137.
“The applicant has exhausted his rights to appeal under the law and the Federal Court, being the final appellate court, had affirmed his conviction and sentence in accordance with the law,” he said.
Hearing dates over Najib’s application for review of the Federal Court’s entire August 23 decision to uphold the conviction and uphold the sentencing in the SRC case has not been fixed but a case management has been fixed for October 21.
