By Aathi Shankar
The current ruling Pakatan Harapan (PH) regime has promised to uphold the rule of law and, give a fair and just trial to Datuk Seri Najib Razak in all the politically motivated and maliciously concocted corruption cases slapped on him.
But it seems that the regime’s message has not reached the ears of the Attorney-General (AG) Chambers.
Today, Tuesday, December 3, 2019, is the 1st day of former Prime Minister Najib’s defence for trial pertaining to the SRC International Sdn Bhd funds.
He was ordered to enter his defence by Kuala Lumpur High Court Judge Mohd Nazlan Mohd Ghazali on November 11, 2019.
But till today, the prosecution continues to withhold the identity of 102 witnesses and their investigation statements recorded by the Malaysian Anti-Corruption Commission (MACC), thus depriving Najib’s rights to prepare a strong defence and have a fair trial.
The investigation statements included those given by fugitive businessman Low Teik Jho @ Jho Low and former SRC chief executive officer (CEO) Nik Faisal Ariff Kamil.
“As a result, the defence has been deprived of the ability to interview these witnesses and electing whether or not to call any of these
witnesses as defence witnesses in the defence case.
“Nonetheless and given the serious consequences to his liberty, DSN has used his best endeavours to prepare for the defence case in the circumstances,” said lead defence counsel Tan Sri Muhammad Shafee Abdullah in his opening statement to begin Najib’s defence.
The defence was only able to interview 7 of the 66 witnesses offered by the prosecution given the exigencies of time.
Shafee pointed out that the prosecution had withheld the identity of 102 witnesses who had provided statements to the MACC during the course of the investigations, which led to the frivolous charges being constructed against Najib.
He said that among the investigation statements withheld were of witnesses who were on the prosecution’s own admission were untraceable, dead and/or cannot be found including the statements of Jho Low and Nik Faisal, who were all clearly have been involved in the material events.
“Vis-à-vis the other defence witnesses, given the above, at this stage, the defence is not able to ascertain with any degree of certainty which witnesses would be called as defence witnesses,” Shafee told the court.
Najib was ordered to enter defence against all 7 charges against him pertaining to alleged misappropriation of RM42 million belonging to SRC.
Mohd Nazlan fixed December 3, 4, 9, 10, 11 12, 16 and 19 as hearing dates for Najib’s defence.
He ordered the Pekan MP to enter his defence after ruling that the prosecution had established its prima facie case on all 7 charges of abuse of power, criminal breach of trust (CBT) and money laundering.
The charges were 3 each for CBT under Section 409 of the Penal Code and money laundering under Section 4 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities (AMLA) Act 2001, and 1 for abuse of power under Section 23 of the MACC Act 2009.
Najib, 66, was charged with committing the offences at AmIslamic Bank Bhd in Jalan Raja Chulan and the Prime Minister’s Office in Putrajaya between Aug 17, 2011, and Feb 10, 2015.
Shafee told the court that the short time period – less than a month, had also hampered the defence preparation.
He said it was only from November 11 that adequate and effective preparation of the defence case could have been undertaken.
He said given that Najib’s personal liberty was at stake, due process in accordance with fundamental liberties guaranteed under Article 5 of the Federal Constitution would have merited a reasonable period and the opportunity be given to the accused to prepare for and mount an effective defence.
Established past practices of the court have in the past allowed several months for this given:
(a) the seriousness of the offences which make up the charges and the penal consequences thereof;
(b) the length of time that has elapsed since the events that are the subject matter of the charges;
(c) the magnitude of the findings in the grounds of judgment;
(d) Najib’s election to give sworn testimony;
(e) the number of offered witnesses (66); and
(f) the necessity to identify and interview potential defence witnesses.
“Nonetheless, there were only 21 days between the date the grounds were pronounced and the scheduled start of the defence case.
“With the greatest of respect, we would be failing in our duties to our client and as officers of this honourable court if we do not state that the resultant time has been inadequate to undertake all necessary action in order to prepare effectively for the defence case,” Shafee said.
Further, out of these 21 days, between 11.11.2019 and 15.11.2019, counsel and solicitors were engaged in the preparation of criminal application No. WA-44-290-11/2019 which was heard and dismissed on 15.11.2019; and in the trial of KLHC criminal case No. WA-45-(11&12)-04/2019 (the PAC case) which proceeded for 6 days whereby Najib was compelled to attend.
“What would have needed several months was effectively relegated to just 11 clear days including the weekends where DSN was able to meet with his solicitors and counsel for the purposes of the defence case preparation.