Call for Najib to enter defence is no shock

QUESTION TIME | If anyone had been following the Najib Abdul Razak case involving SRC International Bhd, even from a distance, would it have been a shock for him that the presiding judge ruled that the former prime minister’s defence had to be called?

Not for me, it wasn’t. And the same goes for most of my friends, some of whom were/are prominent lawyers of their time. And it is one of those few instances that I was on the same page as Prime Minister Dr Mahathir Mohamad, who said that he was shocked that Najib was shocked that his defence had to be called.

What I had gathered as a layman (I am not a lawyer), was basically this: That Najib had helped the cabinet approve loans guaranteed by the Malaysian government of some RM4 billion to SRC from the Retirement Fund Inc, KWAP.

Further, RM42 million was deposited into his account from SRC and the money had been used for various purposes. Najib’s defence seemed to be that he was not aware of the money coming to his account and that he was not aware of how it was used. He blamed others for the trail of events, which seemed rather improbable and unreasonable to me.

And so when Najib’s lawyer Muhammad Shafie Abdullah said that Najib was shocked by the High Court’s decision, I was taken aback and rather surprised and I took the trouble to again read some reports carefully. These included those in Malaysiakini, The Edge Financial Daily and The Star.

First, let’s look at the charges against Najib - there is a total of seven charges. The first charge under the MACC Act says that Najib received RM42 million for obtaining a government guarantee for an RM4 billion loan to SRC from the Retirement Fund Inc or KWAP. If convicted, he faces up to 20 years in jail and a fine of not less than five times the gratification or RM10,000, whichever is higher.

There are three charges of criminal breach of trust (CBT) involving RM42 million while there are three money laundering charges related to the RM42 million deposited into his account. For CBT, he faces a charge of 20 years in jail and a fine while on money laundering, he faces 15 years in jail and a fine of up to RM5 million or five times the amount laundered, whichever is higher.

To see if there was a need to be shocked, one has to look at the grounds of judgment. High Court judge Mohd Nazlan Mohd Ghazali (photo) ruled that SRC was set up and used for Najib’s personal advantage and that he wielded an overreaching position of power in SRC.

He said the intention to obtain gratification could be easily inferred from Najib’s failure to avoid conflict of interest positions at the cabinet and that Najib participated in the decision-making process in the cabinet.

“Given the accused’s control over SRC, he could cause the transfers of RM42 million, which were through intermediaries credited to his personal account and eventually utilised and spent to his own advantage. This is gratification to the accused, pure and simple,” Justice Mohd Nazlan said in reference to the first charge of abuse of power and receiving gratification.

On the CBT charges, the judge said it can be construed that Najib was a shadow director of SRC and it was on his instructions that RM1.8 billion from the first loan was transferred to two banks overseas. He saw Najib as an agent under Section 4 of the Penal Code.

He said Najib’s claim that the money came from Saudi Arabia was beyond comprehension as the money was utilised earlier and ruled that elements of CBT had been proven.

On the money laundering charges, the judge held that the RM42 million originated from unlawful activities as established in the CBT charges.

“I find that the accused knew the RM42 million were proceeds of unlawful activities or, in the best case for the defence, the accused failed without reasonable excuse to take reasonable steps to ascertain whether or not the RM42 million were proceeds of unlawful activities.”

So, was there really a need to be shocked or was all that merely playing politics? Najib himself has said that he will take the stand - a bold move, considering that he had the option of making an unsworn statement or remaining silent, which would be politically incorrect and may not help his case.

But the case, due to recommence on Dec 3, is bound to generate considerable interest and media coverage because Najib is bound to be closely interrogated and the public will be eager to hear what he has to say in defence of all the allegations hurled against him.

This will so far be the most interesting part of this trial and also will make or break his case, for he is the main defence witness and if he can’t make a convincing case for himself, then no one else can do it for him.

Let’s look at what Najib’s defence counsel Shafee (photo) has to say about the High Court ruling. He had expected acquittal on all seven charges - “it’s not just a good case, it was overwhelming both factually and legally speaking”. Shafee did not elaborate fully but gave one example where he said that he disagreed with the judge that Najib was an SRC shadow director.

“I think our defence at the end of the case becomes easier because things that are obviously unprovable and cannot be proved were taken into consideration as the conclusion,” he said.

Shafee said the case would go beyond the next election as there will be many stages of appeal. But there have been instances of more complicated cases handled in lesser time than that. One hopes that there will be no needless delay and time-wasting that will delay a judgment within a reasonable period of time.

However, the Malaysian public, long troubled by 1MDB and all the attendant problems, will share one aspiration in common with Shafee - the opportunity to hear from Najib himself on SRC, which is closely intertwined with 1MDB.

“He is giving evidence on oath. That means you can cross-examine as much as you want. We have a lot of evidence that we can provide, he will testify what really transpired in the Ministry of Finance and in the Prime Minister’s Office,” Shafee said. 

“He (Najib) is not going to run away from the fact that he knows, or rather, he knew Jho Low."

But what he is going to dispute is he never knew Jho Low had criminal intentions. You must bear in mind that in this case, you must distinguish whether Najib was naive or too trusting from whether he has got a criminal mind like that of Jho Low.

“To convict him (Najib), you must be satisfied that he has got the same mind as Jho Low.”

Why couldn’t I have put that better, myself? We all wait with bated breath.

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P GUNASEGARAM, editor-in-chief of Focus Malaysia, is the author of the first book on 1MDB, titled "1MDB: The Scandal That Brought Down a Government". - Mkini