PUTRAJAYA: Najib Razak, who is facing seven charges in relation to the SRC International trial, should have been given a discharge not amounting to an acquittal when the attorney-general (AG) withdrew his transfer certificate in the High Court recently, the Federal Court heard today.
Lawyer Muhammad Shafee Abdullah said the ex-prime minister could have been charged again in a Sessions Court before the case was transferred to the High Court.
“Perhaps, because of pride, the prosecution did not ask the High Court judge to start the case all over again,” Shafee told a seven-member bench in the appeal to challenge the AG’s withdrawal of the certificate.
On Feb 7, High Court judge Mohd Nazlan Mohd Ghazali allowed the AG, who is also the public prosecutor, to withdraw his certificate to transfer the charges faced by Najib from the High Court to the Sessions Court.
Nazlan then used his discretion to transfer the cases back to his court for him to preside over the trial.
On March 21, the Court of Appeal upheld Nazlan’s decision.
The defence has taken the position that AG Tommy Thomas was wrong to withdraw the certificate and that Nazlan should have left it to the registry to decide which High Court judge should hear the transfer of the case.
Shafee said the prosecution’s conduct amounted to “forum shopping” as the case still remained with Nazlan.
He also said there was also a breach of natural justice when Nazlan refused to adjourn the case for the defence to rebut the AG’s sudden application to withdraw his transfer certificate.
The certificate was issued on July 4 when Najib was first charged with abuse of power and criminal breach of trust.
The AG decided to withdraw the certificate fearing Najib’s trial could be declared a nullity due to two Federal Court rulings that implied the prosecution must seek permission from the court to transfer criminal cases.
In the past, the prosecution would just issue a certificate before a subordinate court judge to have public interest cases transferred to a High Court, an action seen as the executive (AG) interfering in the judicial power of the courts.
Thomas today submitted that he gave Nazlan the option to give Najib a discharge not amounting to an acquittal or to use his discretion under Section 417 of the Criminal Procedure Code to have the matter brought back to the High Court.
He said Artice 145 (3) of the Federal Constitution and three Federal Court pronouncements allowed him to withdraw the transfer certificate.
“If the AG can institute, conduct and discontinue criminal trials, then it is also implied that he can withdraw the certificate,” he said.
Thomas said the refusal by Nazlan to grant an adjournment to the defence could not be construed as a breach of natural justice.
“There appears to be much ado about nothing, or a storm in a tea cup,” he added.
Thomas said Najib’s trial started yesterday but the defence is complaining on the route taken by the prosecution to reach the destination.
Najib faces six charges of money laundering and criminal breach of trust in the transfer of RM42 million into his account from SRC International, a former unit of 1MDB.
He is also accused of abusing his power as prime minister by giving government guarantees on SRC International’s RM4 billion loan from Retirement Fund Inc.
The apex court today also heard the prosecution’s appeal against the Court of Appeal ruling which ordered that ad hoc prosecutor Sulaiman Abdullah’s appointment letter be produced to the defence for inspection.
The court also heard the appeal by the defence which wanted a gag order imposed to prevent the media and the public from discussing the SRC case.
Tomorrow, the bench will hear the appeal by Najib to obtain additional documents to prepare his proposed defence should he be called to answer the charges.