PUTRAJAYA, Sept 12 — Former prime minister Datuk Seri Najib Razak and 1MDB’s former CEO Arul Kanda Kandasamy will both remain free from charges over the alleged tampering of the auditor-general’s audit report on government-owned firm 1Malaysia Development Berhad (1MDB), due to the prosecution’s failure to meet deadlines to continue the appeal against the duo’s acquittal.
The Court of Appeal today struck off the appeal as the prosecution had failed to file the required papers within the deadline to continue the trial, and as the prosecution had also failed to file any application to extend the deadline to file in the papers.
The Court of Appeal panel composed of judges Datuk Hadhariah Syed Ismail, Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin made the unanimous decision to strike off the appeal.
After standing down for 15 minutes to deliberate on the prosecution’s attempt to ask to be allowed to file for a deadline extension, the panel of judges returned with Hadhariah firmly saying that the law must be followed when it involves filing deadlines for appeals.
“Based on the chronology of events, we find that in this case there has been three case managements on July 21, August 28 and August 30. During those three case management dates, the appellant was instructed to file the petition of appeal. But the appellant failed to comply with court orders,” the judge said when delivering the unanimous decision, referring to the prosecution as the appellant.
“According to the law, when a petition of appeal fails to be filed within the timeline fixed and no application for extension of time is made for the filing of the petition of appeal, then that appeal is deemed to have lapsed and been withdrawn (luput dan terbatal). That is the legal provision,” the judge said.
For Najib’s and Arul Kanda’s case, the judge said the prosecution had already missed the deadline by more than two months, as it was required to file the petition of appeal — the document needed to continue the appeal — by July 6.
“Any application for extension of time should be done before the end of the deadline for the filing of petition, in this case, the last date to file the petition is July 6, 2023. Until today, September 12, 2023, it is already late by more than two months.
“Until today, an application for extension of time still has not been made.
“Because this case has been brought before this panel, we wish to make an order that these two notices of appeal be struck out,” the judge said.
“Kita ikut law (we follow the law), okay,” the judge concluded.
After the High Court acquitted Najib and Arul Kanda on March 3 without requiring them to enter their defence, the prosecution filed the appeal against their acquittals on March 9 this year.
The appeals were filed via a notice of appeal, but the prosecution was required to file a petition of appeal as part of the appeal process within the deadline set under the law.
Earlier this morning, when the appeal came up before the Court of Appeal today, deputy public prosecutor Datuk Yusaini Amer Abdul Karim said the prosecution wants to seek for an extension on the deadline to file the petition of appeal.
“Today is fixed for mention of this case. We seek for this court to fix a date for case management for us to file a notice of application for extension of time for us to file the petition of appeal,” he told the Court of Appeal panel.
But the lawyers for both Arul Kanda and Najib asked the Court of Appeal to strike out the appeal instead.
Arul Kanda’s lawyer Datuk N. Sivananthan objected to the prosecution’s attempt to seek an extension of time for the filing deadline, pointing out that the records of appeal was collected on June 26 and which means that the 10-day deadline to file the petition of appeal would be July 6.
Sivananthan also pointed out that the prosecution was merely expressing “an intention to file an extension of time”, and that the prosecution had not actually made an official application for extension of time and affidavits to explain the prosecution’s delay.
“So we say this is not a situation where the court should consider the request made by the appellant. In fact, the application could even have been filed yesterday,” he said, but pointed out that the prosecution had yet to file an application for extension of time.
“‘We are going to file’, what does it mean? There’s no application, the court should take notice of the fact even as late as yesterday, an application could have been filed but there wasn’t. So in those circumstances, we say an application shouldn’t be allowed and appeal should be struck off, since there’s nothing before the court to consider at this stage,” he argued.
Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah said the court registrar had on the last two case managements in August reminded the prosecution to file in the necessary papers, noting that the prosecution had not filed any application to extend the deadline and had also not provided any reasons during the case management for the delay in filing.
Saying that this is a very serious matter as the liberty of individuals as protected under the Federal Constitution’s Article 5 is at stake with both Najib and Arul Kanda having been acquitted, Shafee said the “public prosecutor with a few thousand members have no reasons to file late”,
Shafee argued the prosecution’s actions shows its “lack of intention to proceed” with the appeal against the acquittal, and argued that the appeal should be struck out in line with Section 53(3) of the Courts of Judicature Act.
Asked by Hadhariah why the prosecution had not filed the petition of appeal despite reminders to do so during the three case management, Yusaini Amer replied by continuing to seek for an extended deadline based on the fact that this is of public interest.
Yusaini Amer suggested that this was the latest instruction to continue with the appeal.
“This is a public interest case, requiring time for us to truly study all the documents and notes of evidence,” he said, adding that this is also the “latest decision” from the top management of the Attorney General’s Chambers (AGC) to to continue with the filing of the petition of appeal. The newly-appointed attorney general Datuk Ahmad Terrirudin Mohd Salleh’s tenure began about six days ago on September 6. Yusaini Amer did not mention Terrirudin’s name.
Yusaini Amer also said Section 56 of the Courts of Judicature Act does not stop anyone from filing any application for extension of time due to failure to meet the formality required for the appeal, and said the court can hear the application for extension of time and will have the discretion to decide whether to allow the deadline extension.
Judge Ahmad Zaidi interjected by saying that the filing of the appeal papers for a public interest case should have been sped up within the timeline given.
Hadhariah also took the prosecution to task, by firmly saying that the laws have to be followed even if a case is a public interest case.
“Can’t say public interest, you need more time, no need to follow the CJA. The CJA stated the timeline, so you can’t create your own timeline, follow the CJA.
“Don’t give the excuse that this is a high-profile case, we don’t need to follow the CJA. Doesn’t matter if it is high profile or not, everyone follows the CJA,” she said, noting that the prosecution could have filed in a petition of appeal first within the deadline and could also apply to add on grounds or reasons for its appeal later on, and said that was why the court registrar had kept asking during case management why this was not filed.
Citing Section 56, Yusaini Amer then asked for the prosecution to be given two weeks to file the application for extension of time.
But Shafee immediately stood up to respond to the prosecution’s alluding to there being a new AG, saying that there is only one AG position even if the individuals holding the role changes: “There’s only one AG, only the names change. The AG post remains the same. We are talking about one AG post. The fact that the AG has changed makes no difference to the law.”
Shafee said the law in Section 53(3) was clear and that the court should strike out the appeal, saying that the prosecution could then file an application to reinstate the appeal, saying: “That would be the correct way, because otherwise the law becomes nonsense.”
The Court of Appeal panel then stood down for 15 minutes before delivering the decision.
The prosecution did not indicate before the Court of Appeal panel whether it would take any steps such as filing an application to revive the appeal.
Under the Courts of Judicature Act, Section 53(1) states the deadline for filing of petition of appeal to be within 10 days after the notice of appeal has been served.
Section 53(3) states that an appeal “shall be deemed to have been withdrawn” if a petition is not filed within the deadline and that Section 53(3) does not limit or restrict the Court of Appeal’s powers — as provided under Section 56 — to give an extension of time.
Section 56 enables the Court of Appeal to use its discretion to grant an extension of time.
Najib, who is currently a prisoner, wore a dark suit along with what appeared to be a red tie. He was seen sitting on a four-seat bench in the public gallery in the courtroom, with Arul Kanda seated next to him at his right on the same bench and with prison guards also sitting around them.
Later, Najib’s wife Datin Seri Rosmah Mansor was seen sitting directly to his right on the same bench.
Later when met outside the courtroom, Shafee confirmed the prosecution has the option of filing an application to the court to reinstate the appeal which has been struck out, but believes the prosecution would not have any prospects of succeeding.
“They can try, but I don’t think they’ll see any light at the end of the tunnel. The only light they will see is a train coming in the opposite direction,” he said.
Later when asked by Malay Mail, Najib’s lawyer Muhammad Farhan Muhammad Shafee confirmed that any application by the prosecution to reinstate the appeal would have to be made at the Court of Appeal. If the Court of Appeal rejects any application to reinstate appeals, such decisions can be appealed at the Federal Court.
“Although a reinstatement is unlikely to succeed given the length of time that has passed since the deadline to file the petition and the various opportunities the court provided to file the same, an application to reinstate the appeal can be made to the Court of Appeal with a right to appeal to the Federal Court,” Farhan said.
When asked by Malay Mail, Sivananthan however said the prosecution would not be able to file an application to reinstate the appeal, saying: “I don’t think so. It’s been struck off without any liberty to file afresh.”
In this trial, Najib was accused of having abused his position as prime minister and finance minister between February 22 and February 26, 2016, by allegedly instructing for amendments to the 1MDB audit report — which was already ready to be presented to the PAC — before it was finally presented to the PAC.
Najib is accused of having done so to protect himself from civil or criminal action over his role in the handling of 1MDB operations.
Former 1MDB CEO Arul Kanda Kandasamy was on trial as he was accused of abetting Najib, but later testified as a prosecution witness.
