PETALING JAYA: Was Najib Razak deprived of “effective representation” by a counsel of his choice?
That is one of several key questions posed by Najib’s defence team, led by Shafee Abdullah, which the Federal Court will have to address when deciding whether to review its own decision in the former prime minister’s SRC International corruption appeal.
Najib was initially convicted in the High Court by Justice Nazlan Ghazali on seven counts of abuse of power, criminal breach of trust and money laundering involving RM42 million in funds belonging to SRC. He was sentenced to 12 years’ imprisonment and fined RM210 million.
That conviction and sentence was upheld, first by the Court of Appeal on Dec 8, 2021, and then by a five-member panel of the apex court chaired by Chief Justice Tengku Maimun Tuan Mat on Aug 23 last year.
Before that, on July 21, the former prime minister saw an application to appoint leading UK barrister Jonathan Laidlaw dismissed by the Kuala Lumpur High Court. According to Najib, the intention was for Laidlaw to work with Shafee on the Federal Court appeal.
Following that, Najib decided to change his entire legal team, with senior criminal lawyer Hisham Teh Poh Teik agreeing to act as lead counsel in place of Shafee.
His appointment, and that of law firm Zaid Ibrahim Suflan TH Liew & Partners as solicitors, was formalised over the next few days.
On July 26, the new solicitors wrote to the court requesting an adjournment of the main appeal which had already been fixed to run from Aug 15 to 26.
“This was the first time the applicant (Najib) had requested any form of adjournment at the Federal Court,” the submissions said.
That request was repeated at the following case management on July 29.
At a subsequent case management on Aug 10, Hisyam told the deputy registrar he would be applying for an adjournment of the appeal on the first day of the hearing.
He said if the application was rejected, the solicitors and he would have no other choice but to withdraw from representing Najib.
On Aug 15, the five-member panel led by Tengku Maimun sat to hear a motion for leave to adduce additional evidence, which Najib had filed in a bid to recuse Nazlan for a conflict of interests.
Also on the panel were Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Justices Nallini Pathmanathan, Mary Lim and Zabidin Diah.
The next day, after hearing the submissions of both parties over two days, the panel dismissed the motion.
At that point, Hisyam pleaded for the main appeal to be postponed. This is what the defence’s submissions quoted him as saying:
“My Ladies, my Lords.
I agreed to take this brief on July 21, 2022, and from the time I took the brief until today, I (have) worked very hard on the arguments with respect (to) the motion (to adduce fresh evidence).
“I request for time because we would like to come back again to argue the same appeal, with the same amount of passion and sincerity. I ask for time. It’s not the appellant’s fault, it’s mine.
“When I took the brief, I (was) aware that this case (had been) set down for hearing on the 15th. I am also aware of the rules of etiquette.
“But I was hopeful, and consciously confident, that the reasons I advance are valid, are strong, to urge this court to exercise discretion in our favour. Give me sufficient time to prepare for the main appeal.
“My Ladies, my Lords, in this case, I have been informed there are about 179 volumes of the appeal record. Altogether about 57 witnesses have been called. Judgments of both the High Court and Court of Appeal (are) more than 1,000 pages (in length).
“This is no ordinary appeal.
“I would also like to add that the application I make now, is made in good faith.
“We had the first case management on July 29. Indications given to us were that this case will not be adjourned.
“We did not come to court empty-handed. We took the message from the Federal Court, we (undertook) a lot of work in the preparation of the arguments.
So, (the adjournment is) not to purposely delay the hearing of this main appeal.
“In this case, there’s a clash of interest between an expeditious trial and appeal, on the one hand, and fairness and justice on the other.
“The conviction in the Court of Appeal was sometime in December 2021. It means that this appeal is heard one year after the final decision of the Court of Appeal, which is not too long under the circumstances.
“I’ve seen with my own eyes, my Ladies, my Lords, where in other appeals, a lawyer stands up and says, ‘I’ve just been retained,’ and this court allows the adjournment.
We ask for the same treatment, equal protection, equal opportunity, there must be ample opportunity given to the accused person because these are serious charges, and this is the final lap (with) regard to his appeal.
So, on these grounds, My Ladies, My Lord, I plead with all sincerity in me, I plead that justice be seen to be done, I plead that adequate opportunity be given to me and my team to do a good job, to come back again and argue the points that are relevant.”
The prosecution themselves did not object to the request, the defence team’s submissions noted. They simply left the matter to the discretion of the court.
Perhaps, this was because the request was reasonable “based on their own experience in the various courts, including the Federal Court”, the submissions said.
“It could not be said that (Najib) was represented by an effective counsel (at the appeal),” Najib’s present solicitors, Shafee & Co., said in their written submissions.
Hisyam had been “unconstitutionally shackled” from representing Najib effectively, they said, which led him to ask to be discharged.
Even that was denied, they added.
The lawyers contend that the decision to refuse the adjournment requested by Hisyam had resulted in the “extirpation of the applicant’s entrenched right to be heard under Article 5 of the Federal Constitution, and the right to be represented by an effective counsel”.
The refusal also denied the applicant’s counsel the opportunity to prepare his case properly, which amounted to a “procedural impropriety”, they said. - FMT
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