High Court bins Najib’s application to strike out 1MDB report tampering charge

Emmanuel Santa Maria Chin
·5-min read
The judge asserted that it was incumbent on Datuk Seri Najib Razak and his lawyers to prove any charge is oppressive or a supposed abuse of the courts through the court process itself. — Picture by Hari Anggara
The judge asserted that it was incumbent on Datuk Seri Najib Razak and his lawyers to prove any charge is oppressive or a supposed abuse of the courts through the court process itself. — Picture by Hari Anggara

KUALA LUMPUR, Aug 14 — An application by Datuk Seri Najib Razak to strike out his abuse charge over his alleged role in the tampering of 1Malaysia Development Berhad (1MDB) 2016’s audit report has been dismissed by the High Court here today. 

Judge Mohamed Zaini Mazlan, when delivering his judgment this morning, noted that the grounds submitted by Najib’s lawyers, as holistic as they may have seemed, had failed to meet the standards required to grant the dismissal. 

He pointed out that such applications aimed at setting aside or quashing a charge should only be allowed in the rarest of circumstances where there could be a miscarriage of justice. 

The judge asserted that it was then incumbent on Najib and his lawyers to prove any charge is oppressive or a supposed abuse of the courts through the court process itself. 

“The grounds submitted by the applicant, as convincing as he thinks they are, should only be considered at the end of the prosecution’s case, for it would be premature for the court to at this stage consider them without availing itself of all the evidence that the prosecution will submit. 

“The grounds do not meet the high threshold required to set aside or quash the charge against him. 

“The applicant’s application is therefore dismissed,” he said. 

This after Najib had filed an application contending the charge meted out to him, in a trial where he is being jointly tried with former 1MDB chief executive Arul Kanda Kandasamy. 

In addressing each of the arguments presented by both sides, Mohamed Zaini first stated today how he was of the position that the charge and the words contained within it could not be deemed as misleading. 

The judge touched on a point previously raised by Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah when he submitted that the Malay term ‘muktamad’ used in the charges could be interpreted differently, contending that there is no English equivalent of the Malay word. 

Muhammad Shafee had argued in court that the closest English equivalent to the term would be ‘finalise’, submitting that the Malay term held a stricter connotation than its English translation, citing the definition as found within Dewan Bahasa and Pustaka’s Kamus Dewan. 

Mohamed Zaini today then pointed out the English translation, as per the same Kamus Dewan previously cited, provided the root word ‘final’ as the translation to the Malay term ‘muktamad’

“The word ‘muktamad’ therefore could not be said to have a stricter connotation than the word ‘final’,” said the judge. 

Elaborating on this point further, Mohamed Zaini said the argument raised by Najib that the report could not possibly be subjected to further amendments was flawed. 

“The applicant could nevertheless argue that a ‘final’ report could not be subject to any further changes, and still contend that the charge is misleading, as a report that has been finalised could not possibly be finalised again. 

“This however, seems to be the crux of the prosecution’s case, as the accusation levelled against the applicant is that he allegedly took steps to direct the final report be amended, when it had already been allegedly finalised,” said Mohamed Zaini. 

He included how the need would then arise for the court to ascertain whether the report was indeed finalised, and if so, whether it was amended, or as framed by the prosecution that it was ‘finalised again’ by going through the trial.

Mohamed Zaini also addressed the submission by Najib’s lawyers who claimed evidence adduced so far do not support the facts in the case, and that the amended charges failed to disclose any offence known to law.

Concerning the supposed contradictory evidence, the judge said that despite being mindful of three witnesses completing their witnesses’ statements, the prosecution’s case has not reached its conclusion and that additional witnesses and evidence will still be introduced to the trial. 

“Would it be wise to make a final determination on the prosecution’s case at this stage? I think not,” he said. 

Mohamed Zaini explained that banking on the testimonies of several witnesses was akin to providing only a snapshot of the case and failed to give an absolute picture of the prosecution’s case. 

“It is similar to piecing together some pieces of jigsaw puzzle, where it will merely amount to giving a semblance of what the finished product could be, but stops short of giving one a complete picture. 

“Even if the witnesses that the applicant had referred to were material witnesses, and that the excerpts of their testimonies do not support the prosecution’s case, there are other witnesses that the prosecution has yet to call and documents that have yet to be produced,” he said. 

“It could be hazardous for the court to speculate on the outcome of the prosecution’s case at this stage. The outcome of the prosecution’s case should not, and cannot be done in tranches,” he added. 

In this joint trial, Najib and Arul are being tried for their alleged role in tampering with the 1MDB 2016 audit final report.

Najib was charged with abusing his position as prime minister and finance minister to order amendments in February 2016 to the Auditor-General’s audit report on 1MDB before its finalisation and presentation to PAC to avoid any civil or criminal action against him, while Arul Kanda was charged with abetting Najib in the report’s tampering.

Both their offences are punishable under the Malaysian Anti-Corruption Commission (MACC) Act 2009 with a maximum 20-year jail term, and a fine of at least five times the amount of gratification or RM10,000 or whichever is higher.

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