PUTRAJAYA: Chief Justice Tengku Maimun Tuan Mat is heading a five-member Federal Court bench which has begun hearing Najib Razak’s application to include fresh evidence in his SRC International corruption appeal.
Also on the bench are Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim as well as apex court judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah.
The former prime minister is attempting to secure a retrial of the case which saw him convicted and sentenced two years ago.
Najib is represented by lead counsel Hisyam Teh Poh Teik. The team also includes lawyers Zaid Ibrahim, Liew Teck Huat and Ruben Mathiavarnam.
Lawyer V Sithambaram, who has been given a special licence by the attorney-general, is leading the prosecution team. Assisting him are Donald Joseph Franklin, Sulaiman Kho Kheng Fuei and Mohd Ashrof Adrin Kamil.
Najib’s lawyers will submit that judge Nazlan Ghazali was under a duty to disclose to both the prosecution and defence in advance of the trial all facts and circumstances that could have affected the judge’s impartiality or independence.
They will say Nazlan, Maybank’s group general counsel and company secretary between 2006 and April 2015, failed to disclose his involvement in the lead up to SRC’s formation, an RM140 million loan given for its benefit, and credit facilities of RM4.17 billion given to parent company, 1MDB. That non-disclosure deprived him the right to challenge the judge’s jurisdiction to hear the case, they will argue.
That meant Nazlan was presiding while under a “serious conflict of interest”, which gave rise to a “real danger of bias” and severely compromised Najib’s right to a fair trial, his lawyers will contend.
Najib claims he was only alerted to Nazlan’s alleged conflict on May 9 and July 7 this year, after receiving several documents sent to him anonymously.
These include minutes of three meetings held on Mar 7, 2012 which Nazlan participated in – a group management committee meeting, a credit committee review meeting and a special board meeting – as well as email threads and other documents he was privy to in February 2015, which they will say, made him a potential witness in the case.
The former prime minister’s counsel will also tell the apex court that, although relevant to the charges, those documents were not disclosed by the prosecution to the defence as required by law. They will say the documents’ contents have rendered relevant several other documents produced in Najib’s ongoing 1MDB criminal trial, which also ought to be brought into evidence.
On top of that, Najib’s legal team will ask that additional oral testimony be taken from five witnesses – former 1MDB CEO Shahrol Azral Ibrahim Halmi, and four MACC officers who investigated Nazlan earlier this year – and call for the anti-graft agency to produce its investigation records to determine whether it was proper for Nazlan to try the case.
Najib’s lawyers will also say he could not have waived his right to object to Nazlan hearing the case as he did not know of the judge’s interest before and during the trial.
Najib, who is also the MP for Pekan, was convicted by Nazlan on July 28, 2020 on seven charges of abuse of power and misappropriation of RM42 million in SRC International funds after a 76-day trial. He was sentenced to 12 years’ imprisonment and fined RM210 million.
His conviction and sentence were upheld by the Court of Appeal on Dec 8 last year but have been stayed pending the disposal of the present appeal to the Federal Court from that decision.
The present motion was filed in June this year by Najib’s former solicitors, Shafee & Co. On July 16, they filed an application to amend that motion to incorporate additional information received subsequently.
On July 25, Najib appointed Zaid Ibrahim Suflan TH Liew & Partners as solicitors in place of Shafee & Co. Hisyam Teh was named lead counsel replacing Shafee Abdullah.
Nazlan was appointed judicial commissioner in April 2015 and made a High Court judge in January 2017. He was elevated to the Court of Appeal at the beginning of this year.