[UPDATED] Najib should have been acquitted, discharged: dissenting judge

PUTRAJAYA – The bench member of the Federal Court who made the sole dissenting judgment in Datuk Seri Najib Razak’s review application on his SRC International Sdn Bhd case felt the former prime minister should have been acquitted and discharged.

Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli argued that there was a miscarriage of justice in the handling of the final hearing of the case in August last year and that Najib was deprived of a fair trial.

“For the consequential order to be made (over the review application), the proper order, in my view, would be of acquittal and discharge of all the offences the applicant was charged with,” he said when delivering his minority judgement, here, earlier today.

Among other things, Rahman contended that it would be grossly unfair for the court to let Najib suffer as a consequence of the faults committed by his newly appointed lawyers then.

He noted that law firms Messrs Hisyam Teh and Zaid Ibrahim Suflan TH Liew and Partners had replaced Tan Sri Muhammad Shafee Abdullah as counsel just three weeks prior to the final appeal last August, despite knowing well they were not fully prepared to argue the case.

Rahman further pointed out that Najib was given firm assurance in absolute terms by his counsels that an adjournment would be granted for his new defence team to make due preparation, but this failed to materialise. 

“This is the first time the applicant changed his solicitors and counsel since his trial began at the high court in 2019. His record does not show he was in a habit of changing counsels.

“The applicant cannot be faulted for listening to his lawyers’ advice,” Rahman said. 

He said Najib’s right to fair hearing was also defeated when the court decided to go ahead with the trial despite him not being properly represented, and this was after his new counsel Hisyam Teh applied to discharge himself following the court's refusal to grant an adjournment.

He said the fact that the court had rejected Hisyam’s application to discharge himself did not change the equation that Najib was still without a legal representation, since Hisyam refused to take further part in proceedings due to a lack of preparation.

“In that situation, an adjournment would have been required to allow the applicant to engage another counsel or give Hisyam time to prepare. 

“The accused was unable to obtain legal representation, and for that reason alone, he ought to have been acquitted, on the ground that there had been a miscarriage of justice.”

Rahman said the prosecutor’s argument that the Federal Court made the right decision to refuse an adjournment as Hisyam was given four months to prepare for his trial was factually wrong, as the counsel had only taken over the case three weeks prior. 

“Looking objectively and at the overall surrounding circumstances of the case, in particular that the applicant was left to fend for himself, it is difficult not to agree with the applicant (that) he was not given a fair hearing and was denied the chance to prepare himself.”

As such, Rahman said this breach of natural justice warranted a review of his case.

“Since it was not possible for the earlier (Federal Court) panel to conduct the main appeal in accordance with the rule of natural justice, it should have adjourned the hearing of the main appeal,” he stressed. 

Miscarriage of justice claim unacceptable, all facts considered

Earlier, a five-member bench of the apex court here rejected Najib’s application to overturn last year’s Federal Court ruling upholding his conviction and sentencing in a 4-1 decision.

Federal Court judges Datuk Vernon Ong, Datuk Rhodzariah Bujang and Datuk Nordin Hassan, and Court of Appeal judge Datuk Abu Bakar Jais were the four members to dismiss the review application. 

Ong, when delivering the majority judgment, had said the decision was made after considering all submissions in the earlier trials, as well as all evidence and arguments presented by the prosecution and defence. 

Having considered all the records, he said the apex court found that all earlier convictions against Najib are safe and that the sentences imposed against the former premier are not excessive, and therefore affirmed. 

According to Ong, the defence’s submission that there was a miscarriage of justice in the refusal to adjourn his trial last year was not acceptable, as such a decision is made at the full discretion of the judges.

He noted that the hearing dates had been fixed four months prior with the consent of both the prosecution and the defence.

In addition, the judge said the Federal Court then had also considered an earlier instruction issued by the chief justice requiring the prioritisation of public interest cases. 

“As such, the federal court argued that there was no pressing reason to adjourn, and it was duty-bound to proceed with the case,” he said.

“It is abundantly clear to us that the earlier panel had considered all facts and circumstances before arriving at a decision.”

Separately, Ong noted that the defence team had refused to make submissions during the final appeal despite being requested repeatedly by the court, which prompted the latter to proceed with the hearing. 

“On these facts, it cannot be said that the counsel was not given the right to be heard. It was simply a situation where the counsel refused to submit. As such, we find no denial of rights.”

Ong also said the defence argument that the court has no power to refuse a counsel from discharging himself is without merit. – The Vibes, March 31, 2023