Explaining the adjournment of Najib Razak’s trial — New Sin Yew

FEBRUARY 12 — There has been a lot of discussion on Datuk Seri Najib Razak’s trial being adjourned indefinitely.

I think the media reporting on the court proceedings doesn’t fully explain what happened because it is very technical.

There is a lot to unpack and I think a bit of context is required here.

When Najib was first charged, his case was at the Sessions Court.

In the hierarchy of courts in Malaysia, we have the subordinate courts, which are the Magistrates Court and Sessions Court.

Magistrates Court will try less serious offences (like petty theft, assault, etc) and Sessions Court will try more serious offences (rape, cheating, criminal breach of trust).

And then we have the superior courts — the High Court, Court of Appeal and the Federal Court.

The High Court will try the most serious of offences (usually involving capital punishment) or complex cases. The Court of Appeal and the Federal Court are the appellate courts (they do not try cases but only hear appeals from the High Court).

What happened after Najib was charged was the Public Prosecutor issued a certificate to transfer the case to the High Court from the Sessions Court because the High Court was in a better position to try this complex case.

So after the case was transferred to the High Court, trial dates were fixed and directions were given.

However, the Public Prosecutor (as a matter of principle) withdrew the certificate of transfer because he was of the opinion that the particular provision of law which allows him to issue the certificate is unconstitutional in that it allows the Public Prosecutor to take away the powers from the Court. This is wrong because in our democracy, there is a separation of powers between the executive, legislature and the judiciary. Each branch of government is independent of one another and should not encroach into the domain of the other.

Once Najib’s case is before the courts, the public prosecutor being part of the executive should not decide which court hears the case, that is for the courts to decide.

So it was on that basis, the Public Prosecutor took a principled position that the certificate is akin to him encroaching into the domain of the judiciary and that is why he decided to withdraw the certificate.

So once the certificate was withdrawn, the case should be sent back to where it originally came from, the Sessions Court. However, after the certificate was withdrawn, the High Court Judge on his own motion (as allowed under the law) decided to transfer the case from the Sessions Court to him.

Now here is where the dispute lies, when the Public Prosecutor withdrew the certificate. Najib’s legal team argued that he could not do so because by doing so he would be encroaching into the domain of the judiciary. Najib’s legal team also argued that it was improper for the High Court Judge to bypass the High Court Registry and transfer the case directly back to him, the High Court Judge should have let the Registrar of the High Court decide which judge should hear the case.

The High Court did not agree with Najib’s legal team’s argument and proceeded to allow the withdrawal of the certificate and transferred the case directly back to him. And Najib’s team appealed.

When Najib’s team appealed, they asked for the trial to be stayed (or in laymen terms, for the trial to be halted) pending the outcome of the appeal because if he succeeds on appeal, the trial will be a nullity. So the prudent thing to do is to have the appeal decided first rather than risking a waste of time and costs.

I don’t think it’s a tactic to delay the trial because there are genuine concerns as to what happens when the Public Prosecutor withdraws the certificate. I think it concerns procedural justice. To a lay person, everything that has happened here may seem to be lawyers being pedantic but I think there is the need to adhere strictly to due process. Should Najib have been discharged in the High Court and charged again with the same offence in the Sessions Court? These are questions which the Court of Appeal must answer.

Now that the Court of Appeal has ordered that the trial be halted until they decide on Najib’s appeal, we will just have to wait until Najib’s appeal is decided. It is uncertain when that will happen but this is an important case of public interest so the appeal should be heard fairly quickly.

The Public Prosecutor could of course appeal the Court of Appeal’s decision to halt the trial (because Malaysia usually we have two tiers of appeal) but I think the Court of Appeal arrived at the right decision and I don’t think the Federal Court will decide differently. 

If the Court of Appeal agrees with Najib’s legal team then we will most likely see the charges against Najib be dropped and charged against at the Sessions Court as a new case and most likely transferred again to the High Court. And the public will have to wait perhaps a few more months before the trial begins.

If the Court of Appeal disagree with Najib’s legal team then Najib’s trial will proceed at the High Court at new trial dates which again, could be a few more months away.

Of course, Najib will have the option of appealing to the Federal Court as a last resort and that could further delay matters.

Either way, it could be a few more months ahead before we see the trial commences.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.