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No more way out for Najib as apex court refuses SRC review

Malay Mail
Malay Mail

PUTRAJAYA, March 31 — The Federal Court in a 4-1 decision today refused disgraced former prime minister Datuk Seri Najib Razak’s bid for it to review its ruling last year upholding his conviction for misappropriating RM42 million from SRC International, cementing his 12-year sentence and RM210 million fine.

The majority decision by four judges on the panel rejected Najib’s challenge against his conviction and sentence in the SRC case, and effectively endorsed the August 2022 decision of the Federal Court panel chaired by Chief Justice Tun Tengku Maimun Tuan Mat which had ordered Najib to begin serving his sentence.

Federal Court judge Datuk Vernon Ong Lam Kiat read out the majority decision, which was agreed to by three others on the panel — Federal Court judges Datuk Rhodzariah Bujang and Datuk Nordin Hassan, and Court of Appeal judge Datuk Abu Bakar Jais who was sitting as a Federal Court judge.

Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, who was chairing the five-judge bench, was the only judge who dissented or disagreed with the majority.

Today’s decision meant Najib must remain in prison, where he has spent the last seven months now.

In reading out the majority decision, Ong said that Najib’s move to change solicitors and counsel in the final main appeal makes Najib himself the "author of his own misfortune”, and thus should not be subject to review by the apex court.

Ong explained that hearing dates for the appeal were set in stone several months prior, and the apex court had indicated earlier it would not allow any adjournment, citing practice directives prioritising public interest cases.

The Federal Court judge said the majority is also of the view that the court has absolute discretion to allow or deny any adjournment after the defence previously argued Najib was left with ineffective representation.

During the final main appeal, then-lead counsel Datuk Hisyam Teh Poh Teik informed the court he was unable to submit since he was unprepared after having been appointed mere weeks before the hearing.

Hisyam also sought to discharge himself but was prevented from doing so.

The defence also sought to review this decision, arguing that the Federal Court has no authority in preventing the discharge of a counsel but this was rebutted by Ong who cited the inherent powers of the court under Rule 137 of the Rule of the Federal Court.

"Based on the notes of the proceedings, the opportunity was given but [Hisyam] said he was relying on submissions from the lower courts.

“The earlier panel has exercised their discretion judiciously, as there was no denial of Najib’s rights or the claim of breach of natural justice. Thus, there is no merit for a review,” the judge said.

On Najib's bid to review Tengku Maimun’s refusal to recuse herself from hearing the final main appeal, Ong said that Najib had failed to show how her participation would give rise to a real danger of bias.

The judge said the four Federal Court judges on the appeal panel — Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, and Justices Datuk Nallini Pathmanathan and Datuk Mary Lim Thiam Suan — were also all in agreement that the chief justice need not recuse herself.

"We find that the learned Chief Justice in her judgement has identified and applied the correct test of fact.

"There is no basis to review the recusal decision. We do not see any reasons to depart from our decision," he said.

Deputy Public Prosecutor Datuk V. Sithambaram (centre) speaks to reporters at the Federal Court in Putrajaya, March 31, 2023. — Picture by Yusof Mat Isa
Deputy Public Prosecutor Datuk V. Sithambaram (centre) speaks to reporters at the Federal Court in Putrajaya, March 31, 2023. — Picture by Yusof Mat Isa

Deputy Public Prosecutor Datuk V. Sithambaram (centre) speaks to reporters at the Federal Court in Putrajaya, March 31, 2023. — Picture by Yusof Mat Isa

Najib had previously sought Tengku Maimun's recusal on grounds that her husband, Datuk Zamani Ibrahim, had expressed “negative sentiments” towards his leadership in a Facebook post following the 14th general election.

Thus he said the issue of quorum failure as contended by the defence does not arise.

Likewise, Ong said Najib also failed to show how the evidence relating to the High Court's trial judge Datuk Mohd Nazlan Mohd Ghazali acting in conflict while presiding over the trial.

Before his appointment to the judiciary, Mohd Nazlan previously served as general counsel of Maybank Investment Bank Bhd and had advised the bank over matters concerning 1Malaysia Development Bhd (1MDB).

Ong said the majority found no merit for the application under Rule 137 of the Rule of the Federal Court, since the seven charges of the abuse of power, criminal breach of trust and money laundering Najib faced were not relevant to Mohd Nazlan’s role in the trial.

“Hence, the argument on Justice Nazlan’s purported conflict of interests is untenable thus there is no merit for a review of that decision,” Ong said.

On July 28, 2020, Mohd Nazlan found Najib guilty of all seven charges — three for criminal breach of trust, three for money laundering, and one for abuse of power — at the High Court.

Mohd Nazlan, who is now a Court of Appeal judge, then sentenced Najib to 12 years in prison and fined him RM210 million in default five years imprisonment.

His decision was upheld by the Court of Appeal on December 8, 2021.