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Friday, March 31, 2023

Did the Federal Court give Najib a ‘proper’ appeal hearing?


The Federal Court panel hearing Najib Razak’s review bid comprise (from left) Justices Rahman Sebli, Vernon Ong, Rhodzariah Bujang, Nordin Hassan and Abu Bakar Jais.

PETALING JAYA: Did the Federal Court give Najib Razak a proper hearing of his appeals from conviction and sentence? That is one of several critical questions the apex court will need to address when it delivers its decision this morning.

A five-member panel led by Chief Judge of Sabah and Sarawak Rahman Sebli is set to decide whether the apex court will review its decision affirming the former prime minister’s conviction and sentence in the SRC International corruption case.

Sitting with Rahman are Justices Vernon Ong, Rhodzariah Bujang, Nordin Hassan and Abu Bakar Jais.

“As is now well known, the decision (on the merits of the appeal took up) a mere one-and-a-half pages of the judgment,” Najib’s solicitors, Shafee & Co, said in written submissions filed for the review.

It also said a draft of the judgment, leaked in advance over the internet, which was on “almost identical” terms as the actual judgment handed down suggested that the outcome of the appeal had been “predetermined”.

Najib’s lawyers also say the panel which sat in August last year did not give the former prime minister a proper hearing.

Having deprived the newly constituted defence team of the postponement they requested, the court’s suggestion that lead counsel Hisyam Teh “take the weekend” to prepare “on any of the 94 grounds of appeal” before hearing resumed on Tuesday, Aug 23, was “unreasonable”, they said.

“Hisyam (would have had) to read the full records of appeal to fully ventilate an argument to a standard required of a competent counsel and be able to prioritise the grounds in order of importance,” the submissions added.

The lawyers also challenged the way the proceedings were conducted.

The court’s duty is to rehear the case, they said, which would involve reconsidering all the materials before the trial judge.

Instead, they said, the Federal Court “merely treated the appeal as a ‘judicial review’.”

The judges simply accepted the unanswered case advanced by the prosecution and ruled that the findings of the High Court and the Court of Appeal “were not perverse”, without examining the evidence themselves.

Such a procedure is only known in judicial review, which focuses on the procedure and due process of a decision, rather than its merits, they said.

This “procedural failure”, Najib’s lawyers claim, was a breach of natural justice and infringed upon his constitutional right to be heard.

Apart from that, Najib’s lawyers also say the court should not have dismissed his appeals against conviction and sentence simultaneously.

In particular, they say the Federal Court was wrong to deny him a separate hearing on sentencing and failed to give him the right to mitigate the severity of punishment.

Delivering the five-member panel’s unanimous decision, Chief Justice Tengku Maimun Tuan Mat was quoted in the submissions as saying:

“On the totality of the evidence, we find the conviction of the Appellants on all seven charges safe. We also find that the sentence imposed is not manifestly excessive.

“These appeals are therefore, unanimously dismissed and the conviction and sentence (are) affirmed. Warrant of committal to issue.”

That, Najib’s lawyers submitted, was “illegal and unconstitutional”.

“The law demands a distinct and separate hearing for (sentencing) upon the Federal Court dismissing (Najib’s) appeal against conviction,” the lawyers contended.

However, neither he nor his counsel was consulted prior to sentencing, they added.

Without the benefit of submissions, how could the Federal Court come to its conclusion that the sentence imposed by the High Court was not “manifestly excessive”, they asked.

The failure to do so amounted to a breach of natural justice and a “grave injustice” which warrants intervention by way of review, they said.

Najib was convicted on July 28, 2020, by Justice Nazlan Ghazali, who sentenced him to 12 years’ imprisonment and a fine of RM210 million.

Both conviction and sentence were upheld, first by the Court of Appeal on Dec 8, 2021, and then by a five-member panel of the apex court chaired by Tengku Maimun on Aug 23 last year.

Also on the panel were then Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Justices Nallini Pathmanathan, Mary Lim and Zabidin Diah.

Najib is presently serving his prison sentence, which began on Aug 23, 2022 immediately following the Federal Court’s dismissal of his final appeal.

Two weeks later, on Sep 6, he filed the present application pursuant to Rule 137 of the Federal Court Rules 1995, seeking leave of the apex court to have its decision reviewed.

A fresh panel, led by Rahman heard arguments over six days between Jan 19 and Feb 28, and adjourned the case to today for decision. - FMT

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