Why I am elated by the Federal Court decisions

 

I am elated by the Federal Court decisions over Najib Abdul Razak’s SRC International case because it has finally, firmly and faultlessly put his fate in the hands of a free and fair judicial decision shorn of all the drama, delay and delinquency of the past few years.

Both decisions by the court - the first to reject the introduction of further evidence in the trial and the second the decision to give an adjournment of a day instead of the three to four months requested by Najib’s new lawyers - are fair and proper with full reasons given.

At long last Najib will face his fate based on the mountain of evidence presented against him and he faces the consequences if the court affirms his guilty conviction regarding the RM42 million he received from SRC, a wholly subsidiary of the Minister of Finance Inc. There was no doubt that the amount came into Najib’s account but Najib maintained he was not aware of it.

In a few days, we may know the Federal Court’s decision over Najib’s appeal to overturn High Court judge Mohd Nazlan Mohd Ghazali’s decision to convict him on seven charges relating to SRC - one of abuse of power, three for criminal breach of trust and three for money laundering.

He was found guilty on all seven counts and sentenced to 12 years in jail and RM210 million in fines. The Court of Appeal had earlier on Dec 8, more than eight months ago, upheld Nazlan’s decision. Following this, Najib’s lawyers asked for a mistrial saying Nazlan was conflicted, applied for a Queen’s Counsel to hear the appeal and in a dramatic last-minute move, Najib switched lawyers.

I saw the KiniTV video when Najib, his counsel Hisyam Teh Poh Teik and another partner of the firm Zaid Ibrahim took turns at the microphone following the Federal Court hearing. They all uniformly expressed their deep disappointment at the Federal Court decisions and walked away without taking questions.

It was a rather grim appearance with all of them fully understanding the gravity of the situation and that the final decision on Najib will be made very soon.

But none of them articulated any clear statements which could have challenged the unanimous decision of the five-person Federal Court chaired by Chief Justice Tengku Maimun Tuan Mat to first decline new evidence to be adduced indicating a conflict of interest involving Nazlan.

The other bench members were Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court justices P Nallini, Mary Lim Thiam Suan, and Mohamad Zabidin Mohd Diah.

It would not be enough to merely allege a conflict of interest. There is a need to show that Nazlan was conflicted by his actions and decisions in court. The crux of the issue is whether Nazlan was influenced and showed it.

The judges addressed the issue thus: “We are not in any way convinced that the proposed evidence establishes anything to the effect that Nazlan’s findings were in any way mired by any discreet or undisclosed personal interest on his part on the establishment of SRC International Sdn Bhd and its subsequent operation such as to render him a conflicted or biased judge.

“Nor do we find anything in the motion that Nazlan had any particular knowledge or was inspired by any extraneous considerations gained from his previous employment with Maybank to sustain any of his factual or legal findings in respect of the seven charges against the applicant,” she said.

Tengku Maimun further observed that the bench is not convinced that the trial judge made his findings based on anything other than the evidence on record. That puts that matter firmly to rest, as it should have been a long time ago.

An appeal, not a trial

On the declining of an adjournment of three to four months requested by Teh to prepare for the case, the judges decided on a single day instead. Which looks reasonable considering that this is an appeal and not a trial and therefore they should have had enough time to prepare from the time they first asked for an adjournment.

In a shock move, Najib dismissed his previous lawyers, Shafee and Co, and appointed the current ones, Zaid Ibrahim Suflan TH Liew & Partners, on July 26, which means they had three weeks to prepare for the case. This does not include the time they would have taken to study the brief before deciding to accept the case.

It is therefore reasonable to assume that they had enough time to study the case before agreeing to represent Najib plus another three weeks from the time they became Najib’s lawyers. More than enough time.

Tengku Maimun observed that where a lawyer has accepted a case, he or she should be deemed as “reasonably certain of being able to appear and represent the client on the required day” per Rule 24(a) and (b) of the Legal Profession (Practice and Etiquette) Rules 1978.

Presumably, this rule was in place for exactly this reason: to prevent undue delay of the court process, something the Federal Court recognised.

Tengku Maimun continued: “In fact, the appellant, having been well aware of the dates fixed for hearing, elected to discharge his former solicitors and appoint Messrs Zaid Ibrahim and Tuan Haji Hisyam Teh as his solicitors and counsel respectively.

“This is his right to do so but he cannot, after having made that decision, turn around and say that his new lawyers are not ready to proceed with the hearing of the appeals.

“The new lawyers too, having accepted the brief, are not entitled to say they need more time to prepare, knowing full well that the dates had been fixed well in advance,” the chief justice said.

That sounds eminently reasonable, fair and persuasive and the diatribe that the trio of Najib, Teh and Zaid made against the Federal Court and their “bitter disappointment” with the Federal Court have little, if any legal or even logical basis.

As a Malaysian, I am proud of our judicial system, which despite its many failings, has finally brought a powerful former prime minister who still wields tremendous power and influence in the government and in the party to the brink of justice. That too despite the many misgivings of Malaysians, now shown to be misguided, that this will never happen.

I thought I would never say this again at one time: Tabik to the judiciary and the Federal Court! - Mkini

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P GUNASEGARAM, a former editor at online and print news publications, and head of equity research, is an independent writer and analyst.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT