Federal Court judgement in upholding Najib Razak's conviction in SRC International

1. THE Federal Court – as the apex and supreme court of the land – has on 23 August 2022 delivered its verdict and judgment on Najib Razak’s conviction by the High Court and as upheld by the Court of Appeal in relation to the seven charges concerning abuse of power, criminal breach of trust (CBT) and money laundering in his capacity as the Prime Minister, Minister of Finance and Adviser Emeritus who exercised overarching power over SRC International.

In pursuant of the charges levelled at Najib, the relevant laws were as follows:

• Section 23 of the Malaysian Anti-Corruption Commission Act 2009 (abuse of power),

• Section 409 of the Penal Code (CBT) and, finally,

• Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (money laundering).

As it stands, the verdict of the five-person bench composition of the sitting Federal Court was unanimous – as had been the verdict of the Court of Appeal.

Together with the trial judge of the High Court, this cumulatively makes for nine judges in total who have ruled against Najib in his conduct re SRC International.

It needs to be said that the unqualified and unconditional and, therefore, absolute judgment of the all three courts of the judiciary of Malaysia represents a vindication of all the efforts that had been undertaken to bring the ultimate perpetrator – of what is simply another episode in the long list of scandals that has beset our beloved country – to justice.

Special mention is to be made of the lead prosecutor Datuk V. Sithambaram – whose unflagging and indomitable posture in the face of a former Prime Minister who wielded near-absolute power and who remains highly influential in his own right – pursued the case with dogged and unrelenting determination to ensure that guilt is openly and finally demonstrated.

2. Now that “the work of justice is done, let the work of mercy begin”.

Having been judged guilty (again) and thereby sentenced to 12 years imprisonment (and a fine of RM210 million in lieu of another five-year jail term), let Najib thereafter seek redemption and repentance, and not only peace, consolation and comfort.

He has now the opportunity, time and space to reflect and ponder on his misdeeds and miscreant conduct towards nation and society – so as to seek forgiveness from both the Almighty and fellow citizens.

3. Of late, aspersion has been cast on the independence and objectivity of the judiciary. Whilst this is not unprecedented, given the interference of the Executive in the past, under the Right Honourable Tengku Maimun Tuan Mat CJ, the present judiciary has once again re-asserted its independence and institutional dignity.

It is vital that the Executive as well as sitting-Parliament continue to respect the separation of powers, the rule of law and the supremacy of the Federal Constitution so that the judiciary can be seen for what it is, namely an equal partner and branch of government.

4. The allegation by Najib that he has not been given a fair trial due to bias on the part of the CJ cannot be sustained.

For bias to be shown, a judge has to have either a conflict of interest which would normally imply some vested interest or (material) benefit to gain from ruling in favour of one side.

This was shown not to be the case with Judge Nazlan Ghazali of the High Court since there was no conflict of interest between his previous role in Maybank and as sitting judge for the SRC International case.

Or that there was actual bias such that the case is already pre-determined. An example of actual bias would be where the judge displayed bias during the court proceedings.

But this can’t be proven as even Najib’s lawyers dare not raise the matter.

The testimony and conduct of all the prosecution witnesses had been very clear – Najib bears ultimate culpability.

On the refusal of the Federal Court to allow for deferment, this cannot be said to jeopardise or threaten the integrity and fairness of the proceeding – since there was no proper basis to do so in the first place.

Recall that the original plea for deferment was on the basis that Najib wanted to engage a QC, i.e., a foreigner to argue what he claimed to be complex points of law.

But the question immediately arises – how would procuring the services of a foreign lawyer help to address what is simply a matter of purely domestic law (Malaysian legislation)?

Indeed, this was precisely the judgment of Judge Ahmad Kamal Md Shahid in hearing the bid to admit Jonathan LaidLaw QC to represent Najib.

Judge Kamal has said that Laidlaw did not possess special qualifications and experience that were unavailable among local lawyers.

To quote the judge: “From the perusal of the applicant’s CV, it would indicate that he has no experience of providing legal advice or services here. It raises genuine concern and doubt on the admission as to whether the applicant, who does not know local laws, would benefit the local legal fraternity”.

5. And finally, let us not forget Najib is still facing more charges in relation to 1MDB.

As with SRC International, it is the same actor and player. SRC International was a subsidiary of 1MDB when it was formed in 2011, but “de-merged” in 2012.

The charges are all symptomatic of what has gone wrong with our politics and political system.

The remaining charges are as follows:

a) 1MDB – RM2.82 billion – four charges of bribery and 21 charges of money laundering involving the amount

b) 1MDB – RM6.6 billion – six counts of CBT together with Irwan Serigar (former Secretary General of the Ministry of Finance)

c) 1MDB audit report tampering – together with Arul Kanda

d) SRC International – RM27 million – money laundering

May justice continue to be upheld. In response to Najib’s sumpah laknat, we say fiat iustitia, ruat caelum (“let justice be done though the heavens fall”) …

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Datuk Wira Dr Hj. Rais Hussin Hj Mohamed Ariff is the President and Chief Executive Office of EMIR Research