PUTRAJAYA: The Federal Court today dismissed three appeals by Najib Razak, including one to obtain additional documents to prepare for his trial in relation to the SRC International case.
The bench, chaired by Chief Justice Richard Malanjum, also threw out the ex-prime minister’s appeal for a gag order to prevent the media and members of the public from discussing his case.
It likewise dismissed a challenge to the attorney-general’s withdrawal of his certificate to transfer the case from the Sessions Court to the High Court.
It allowed the government’s appeal that the defence is not privileged to inspect the appointment letter of ad hoc prosecutor Sulaiman Abdullah.
All interlocutory matters are now settled to pave the way for the trial to begin in the Kuala Lumpur High Court on April 15.
Last week, the panel, also consisting of Chief Judge of Malaya Zaharah Ibrahim, Chief Judge of Sabah and Sarawak David Wong Dak Wah, Ramly Ali, Tengku Maimun Tuan Mat, Idrus Harun and Nallini Pathmanathan, heard submissions for two days.
Today, Idrus said Parliament had passed section 51A of the Criminal Procedure Code that said documents could be delivered to the accused before the trial started and this had already been done by the prosecution.
“The court should not change the intention of the legislature to give more than what is required,” he said.
Idrus said should Najib’s demands be allowed, it amounted to the entire investigation papers being delivered to him.
“The equality principle in a trial will be violated,” he said, adding that the High Court and the Court of Appeal were also correct in law and fact to dismiss the appeal.
He said the defence also took the position that all admissible documents and statements in the possession of the prosecution must be given to them.
“This too has no basis as the admissibility of such documents and statements can only be decided during the trial,” he added.
Malanjum said the gag order was difficult to enforce as the media outside Malaysia reporting the case was not bound to follow.
Further, he said the order was not necessary as Malaysia had abolished the jury trial and Najib’s case was heard by a single judge, who is the trier of fact and law.
“In any event, the trial judge’s ruling is also subject to review on appeal,” he added.
He said Najib also has alternate remedy, like filing defamation suits and initiating contempt proceedings against those who went overboard in their reporting.
Wong said the AG was at liberty to issue and withdraw his transfer certificate and this authority was vested with him under Article 145 (3) of the Federal Constitution.
He said AG Tommy Thomas had given High Court judge Mohd Nazlan Mohd Ghazali the option to give Najib a discharge not amounting to an acquittal or to use his discretion under Section 417 of the CPC to have the matter brought back to the High Court.
“There was no error by the judge to exercise the discretion in the expedience of justice,” he said, adding that Nazlan had fixed trial last year and had been conducting case management in preparation of the trial.
Wong said there was also no blatant error by the judge and as such there was no reason to disturb the ruling made on Feb 7.
The defence took the position that the AG 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.
Wong also said Najib had no legitimate expectation to inspect Sulaiman’s appointment letter just because he was a public figure.
He said there is no difference between a client appointing a lawyer and the AG giving a licence to Sulaiman to prosecute Najib in this case.
“The client-solicitor privileged communication under Section 126 of the Evidence Act applies and the busybody argument raised by the prosecution has merit,” he said.
Najib faces six charges of money laundering and criminal breach of trust in the transfer of RM42 million to 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.