PUTRAJAYA (March 12): A lawyer representing former prime minister (PM) Datuk Seri Najib Razak in the SRC International Sdn Bhd case submitted yesterday that a provision in the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) and another in the Anti-Money Laundering, Anti Terrorism Financing and Proceeds from Unlawful Activities Act 2001 (AMLATFPUA) are not fair to his client.
Counsel Havinderjit Singh told the Court of Appeal that Section 30 of the MACC Act and Section 40 of the AMLATFPUA allows the prosecution to withold any documents which can be accepted straight by the court without any question. On the other hand, Section 51A of the Criminal Procedure Code (CPC), under which some documents had been given, requires the prosecution to give the documents to the defence.
“My client is faced with three charges under the Penal Code for criminal breach of trust, three more under money laundering and one under the MACC Act,” he said, referring to the seven SRC charges Najib is facing.
“However, these sections in the MACC Act and the AMLATFPUA allow the prosecution to withhold such documents from the defence, and this could be produced in court as evidence without giving us time to scrutinise it. It will be unfair to the defence,” he said.
Havinderjit, who appeared with senior lawyer Tan Sri Muhammad Shafee Abdullah, was submitting Najib’s appeal against four decisions made by High Court Judge Mohd Nazlan Mohd Ghazali, before a three-member panel led by Justice Datuk Zabariah Mohd Yusof.
The others members are Justice Datuk Rhodzariah Bujang and Justice Datuk Lau Bee Lan.
The decision made by Mohd Nazlan includes not allowing the defence from getting further documents from the prosecution with regard to the SRC case.
The lawyer said that this is the first time that Section 30 of the MACC Act and Section 40 of the AMLATFPUA are being scrutnised and questioned as being unfair in the administration of justice.
Havinderjit further pointed out that to make matters worse for his client, Section 62 of the MACC Act requires him to state his defence before the proceedings start.
“This is again injustice to my client as he has to say his defence before the trial or be liable to take action against, and now with the two sections, he could not get all documents to prepare his proper defence.
“How do we know that the documents which they do not want to give can be used in our defence. Hence, this is unfair to the defence,” he said.
Havinderjit added that Mohd Nazlan did not allow the application for fear of witness tampering, but said as he received 26 witness statements from the prosecution under Section 51A of the CPC that Najib did not ask to see any of them.
Shafee: Gag order should be given
Another area Najib is appealing against is the High Court’s decision not to allow a gag order on the media and the public to refrain them from discussing the merits of the case.
Muhammad Shafee said the court should play the role of avoiding sub judice statements from being issued by the people and the media, be it the traditional or alternative media.
The senior lawyer said while Mohd Nazlan had dismissed the application for a gag order, in his written judgement it seemed that he supported the gag order.
“If the attorney general (Tommy Thomas) doesn’t want to do it (apply for a gag order) , the court must step into the role by culling the words from the judgement so it could be applied to the public and the media,” he said.
Havinderjit added that out of 100 plus paragraphs in Mohd Nazlan’s judgement, there are five or six paragraphs where the court seemed to be in agreement with the gag order.
Havinderjit said that while the judge had disallowed the gag order, his judgement appeared to support it and that was what the defence wanted.
The lawyer further cited the UK attorney general giving an advisory note to the media and the public on how to describe an accused person (who was allegedly involved in a terrorist crime), and went on to ask why this could not be done in Malaysia.
Thomas, who led the prosecution, said the court should recognise that in the memorandum of appeal filed by Najib, the former premier was appealing against the whole decision on the gag order but now his lawyers are saying otherwise.
“We are here to defend the judgement and say it is the right decision as we do not have a jury trial. Hence, the judge won’t be influenced,” he said.
“You cannot use only a portion of the judgement to support your case as the judgement has to be seen in its entirety,” he said.
Furthermore, Thomas said that there are ample laws to deal with the matter, including the defamation law.
Besides getting more documents and the gag order, Najib is also appealing against the fiat (authority) granted by the Attorney General’s Chambers (AGC) to senior lawyer Datuk Sulaiman Abdullah to lead the prosecution team, where Thomas argued that the AGC had a right not to disclose details of the appointment but pointed out that Sulaiman was appointed pro bono (for free).
Najib is also appealing against the manner the SRC case was transferred from the Sessions Court to the High Court.
The hearing of Najib’s appeal continues today.
This article first appeared in The Edge Financial Daily, on March 12, 2019.