SRC abuse of power charge against Najib 'illegal', Shafee submits

 

The SRC International-linked abuse of power charge against Najib Abdul Razak was "wrong" and "illegal", the Court of Appeal heard today.

The former prime minister’s lead counsel Muhammad Shafee Abdullah (above) submitted that this was because not only Najib did not have a personal interest in SRC, but also due to a proviso in Section 23(4) of the MACC Act 2009.

Section 23(4) states that "This section shall not apply to an officer who holds office in a public body as a representative of another public body, which has the control or partial control over the first-mentioned public body in respect of any matter or thing done in his capacity as such representative, for the interest or advantage of that other public body".

Among the seven charges which Najib was found guilty of was one charge of abuse of power under Section 23(1) of the act. 

Section 23(1) states that "Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence".

Shafee’s submission was in relation to Najib’s appeal to quash his conviction and sentencing over the seven charges - one for abuse of power, three for criminal breach of trust, and three counts of money laundering in relation to RM42 million of SRC’s funds.

The abuse of power charge accused Najib of ensuring the cabinet, via two meetings in late 2011 and early 2012 respectively, to greenlight government guarantees for a total RM4 billion loans from Retirement Fund Incorporated (KWAP) to SRC, in return for receiving gratification of RM42 million.

Besides being the former prime minister, Najib was also the finance minister, the sole shareholder of Minister of Finance Incorporated (MOF Inc), and adviser emeritus of SRC.

SRC is fully owned by MOF Inc, while KWAP is under the Finance Ministry.

Before the three-person Court of Appeal bench chaired by judge Abdul Karim Abdul Jalil, Shafee submitted that the abuse of power charge was wrong because the decision to greenlight the government guarantees was a collective cabinet decision rather than solely Najib's.

The lawyer contended this goes against the prosecution’s contention that Najib had the intent to get the cabinet to greenlight the government guarantees in return for R42 million gratification.

Former prime minister Najib Abdul Razak

“I say that the (abuse of power) charge was wrong, the Section 23 charge was wrong and illegal.

“When Najib sat in the cabinet meetings, he could not sit there (like the offence envisioned in) Section 23,” Shafee said.

“The cabinet made a collective decision, not that of Najib as an individual, prime minister, finance minister or Minister of Finance Incorporated,” Shafee submitted.

The lawyer also contended that the abuse of power charge was wrong as the way it was framed contained multiple alleged offences in a single charge.

Shafee claimed this goes against the legal requirement that a single criminal charge must only state a single alleged offence and not multiple offences.

The lawyer submitted that this prejudiced Najib’s ability to mount a proper defence against the case of abuse of power.

“We, both the defence and prosecution, are in this mess now because the (abuse of power) charge was totally wrong, as implicit in the (single) charge, are two charges fragmented in the single charge. From the current charge, can actually split into two offences. This is a misjoinder.

“On this fact alone, Najib ought to be acquitted,” Shafee said.

The hearing is ongoing today before the panel, which is also comprised of judges Has Zanah Mehat and Vazeer Alam Mydin Meera.

For today and tomorrow, Najib’s defence team is expected to continue to mount their submission-in-reply against the prosecution’s submission. The prosecution seeks for the Court of Appeal to dismiss Najib’s appeal.

On July 28 last year, the Kuala Lumpur High Court convicted Najib on one count of abuse of power, three counts of CBT and three counts of money laundering in relation to RM42 million of funds from SRC.

Trial judge Mohd Nazlan Mohd Ghazali then sentenced Najib to 12 years in jail and a fine of RM210 million.

The lower court allowed the defence team's application for a stay of the sentence pending the disposal of his appeal.

SRC, which was once a subsidiary of troubled sovereign wealth fund 1MDB, later became fully owned by MoF Inc. Najib also used to be chairperson of 1MDB’s board of advisers. - Mkini