PETALING JAYA: Najib Razak had no legal representation when a Federal Court panel heard and dismissed his appeal in the SRC International corruption case, according to a minority judgement by Federal Court judge Rahman Sebli.
“Justice is not only about the guilt or innocence of the accused person. It is also about according him a fair trial,” said Justice Rahman in a 78-page minority judgment released today.
Rahman, who is Chief Justice of Sabah and Sarawak, was a member of a five-panel Federal Court bench which heard Najib’s application for a review of the court’s decision to dismiss his appeal in the SRC case.
He said the refusal by the court to grant an adjournment of the main appeals “had defeated altogether (Najib’s) right to be represented by an effective counsel”.
The judge said he found nothing in the materials before the court to suggest that Najib’s defence team, which was revamped three weeks prior to the appeal, was seeking an adjournment as part of a “ploy” or “strategy” to delay the hearing.
Instead, new lead counsel Hisyam Teh Poh Teik’s “impassioned plea” for the team to have sufficient preparation time was made in good faith since even the prosecution did not object to the request, the judge said.
Najib’s application for a review by the Federal Court of his conviction and sentence was dismissed by a 4-1 majority when Justices Vernon Ong, Rhodzariah Bujang, Nordin Hassan and Abu Bakar Jais ruled to dismiss his motion.
Ong, delivering the majority judgment, said Hisyam was granted the opportunity to submit at the appeal but elected not to do so. Ong said the circumstances did not occasion a miscarriage of justice.
However, Rahman said that while the court retained a discretion whether to grant the adjournment, the real issue was whether the exercise of that discretion had deprived Najib of his right to a fair hearing.
He said Najib was denied a fair hearing when Hisyam discharged himself after the panel insisted that the appeal must proceed.
“The reason that Hisyam discharged himself from representing the applicant was because he was totally unprepared to argue the main appeals, which involved (going through) some 30,000 documents,” said Rahman.
Despite the discharge, Hisyam was then told to remain in court as counsel on record for Najib. “In other words, he was forced to act as counsel for the applicant,” said Rahman.
The judge said Najib could no longer be said to have legal representation when counsel of his choice was unwilling to represent him any further.
“A forced representation is no representation at all, especially where, as in this case, counsel refused to take part in the hearing of the main appeals. That is common sense,” he said.
Flawed proceedings
The judge also took issue with the manner in which the appeals panel, chaired by Chief Justice Tengku Maimun Tuan Mat, conducted the proceedings.
He said the Criminal Procedure Code provides that the appellant (Najib) was to be heard first in support of his appeal, followed by the respondent.
“This statutory procedural requirement was not followed by the court,” said Rahman. “Instead of hearing (Najib) first, the court invited the learned deputy public prosecutor to submit first,” he added.
Noting that the panel took the “unusual course of action” because Hisyam had declined to participate in the hearing, Rahman said:
“Counsel’s refusal to submit was equated by the court as non-appearance by (Najib) or his advocate to support his appeal,” said Rahman. He described the decision as surreal “because the applicant (Najib) and his advocate were in fact physically present in court”.
He said the prosecution was heard for two full days whereas Najib was not heard at all. “Any which way one looks at it, the end result was that the court only heard one side” which he said was a violation of natural justice.
Najib was convicted in July 2020 on charges of abuse of power, money laundering and criminal breach of trust over funds of SRC amounting to RM42 million.
He was sentenced to 12 years’ jail and fined RM210 million. He began serving his prison term on Aug 23, 2022, after the Court of Appeal dismissed his appeal, followed by the Federal Court upholding the original conviction and sentence.