Najib's team says insufficient time given to mount an effective defence

NAJIB TRIAL | Despite having his “personal liberty at stake”, former prime minister Najib Abdul Razak was not accorded sufficient time by the court to mount an effective defence against the criminal charges in his RM42 million SRC International trial, his legal team said.

In making his opening defence statement in the High Court in Kuala Lumpur today, lead defence counsel Muhammad Shafee Abdullah (above) said the accused was only given 21 days to prepare for his defence.

“Given that Najib’s personal liberty is at stake, due process in accordance with fundamental liberties guaranteed in Article 5 of the Federal Constitution would have merited a reasonable period and opportunity being given to Najib to prepare for and mount an effective defence,” Shafee said.

Reading from a statement, he told the court presided by Justice Mohd Nazlan Mohd Ghazali that, however, “established court practices” in the past usually accorded several months for the defence to prepare its case.

This is as the court would have taken into account, among others, the seriousness of the alleged offences; the length of time since the events pertaining to the charges have taken place; the accused’s election to give a sworn testimony, the number of witnesses offered by the prosecution and the necessity for defence to identify and interview potential witnesses.

“With the greatest of respect, we would be failing in our duties to our client and as officers of this honourable court if we do not state that the resultant time has been inadequate to undertake all necessary action in order to prepare effectively for the defence case.

“What would have needed several months was effectively relegated to 11 clear days, including the weekends, where Najib was able to meet with his solicitors and counsel for the purposes of the defence case preparation,” the court was told.

Shafee added that as a result, the defence team has only been able to interview seven of the total 66 witnesses offered by the prosecution led by Attorney-General Tommy Thomas (photo).

This, on top of the fact that the prosecution withheld the identities of 102 witnesses whose statements to the MACC in its probe against the Ministry of Finance Inc’s SRC International Sdn Bhd led to the charges against his client.

“The prosecution continues to withhold the investigation statements of witnesses who, on the prosecution’s own admission, are untraceable, dead and/or cannot be found, including the statement of (businessperson) Low Teik Jho @ Jho Low and (SRC International CEO) Nik Faisal Ariff Kamil, who clearly have been involved in the material events,” Shafee said.

Low and Nik Faisal are fugitives sought after by Malaysian authorities in relation to this 1MDB and related cases.

Despite his counsel’s protest over lack of time, Najib took the stand today in his defence, marking the first time in Malaysia's history that a former prime minister is made to take the stand as an accused in his own criminal case.

Najib, who is also former finance minister, had elected to give a sworn statement from the witness stand, which would open him to cross-examination from the prosecution.

'Prosecution’s job is to prosecute, not persecute'

According to Shafee, the defence is looking to prove Najib had no personal interest in SRC International, which can be said to conflict with his public duty, and that Najib at all times acted in the best interests of the government and country.

It is also looking to dismiss the allegation that Najib was unilaterally empowered to direct and control the SRC International Board of Directors, which acted as the ultimate decision-making body and that the board was not acting on the instructions of any other third party.

This, Shafee said, included decisions on SRC funds.

“To suggest that the board of directors consisting of such highly qualified and experienced individuals were unaware of their statutory and legal duties to act in the best interest of the company and instead unquestioningly acted on the say-so of Nik Faisal and/or based on purported resolutions of a shareholder on matters which only the board of directors could have and should have decided on defies logic and reeks of self-serving afterthoughts, inspired by their own self- preservation,” Shafee’s defence statement said.

Speaking to members of the press later outside of the High Court, the senior lawyer said it was the prosecution's duty to provide the defence team with the necessary witness statements being withheld as it could help Najib's case.

“So we are questioning what is wrong if the prosecution reveals to us these documents, because they are public documents, that may assist us in our defence," he said.

"After all, the prosecution’s job is to prosecute, not persecute. So if they have this information that may help us, we feel it is their duty to disclose it to us."

To a question on how many witnesses the defence team is planning to call up, he declined to reveal saying it was still "work in progress", as he cited his earlier statement in court that his team had been unable to interview all prosecution witnesses or review all witness statements.

These include witness statements of those who have absconded from the country such as Low and Nik Faisal.

It was previously reported that the MACC had initially traced and questioned Nik Faisal in Jakarta, Indonesia, and Low in Abu Dhabi, United Arab Emirates, both in 2015.

The High Court had, on Nov 15, denied Najib's application to compel the prosecution to hand over statements of witnesses interviewed by the MACC and police but never testified during the prosecution stage of the trial.

Nazlan ruled that the High Court is bound by the precedent set by the Federal Court in past cases involving PKR president Anwar Ibrahim and Najib, which held the witness statements recorded under the MACC Act are privileged documents and not subject to disclosure at any stage of a trial.

He also ruled that Najib has failed to identify the specific witness statements he required nor the relevance of the evidence.

Najib is on trial for seven charges - one for abuse of power, three for criminal breach of trust and three money laundering - in relation to RM42 million involving the former 1MDB subsidiary.

Today is the 59th day of the trial. - Mkini