Najib the author of his own misfortune, apex court says in dismissing bid for review

The Federal Court in a 4-1 majority decision today ruled that Najib Razak was the author of his own misfortune whereby his appeal hearings in his SRC International case were not heard by the previous panel. 

Justice Vernon Ong Lam Kiat, when reading out the majority judgment, dismissed the former prime minister’s application to review the decision of the previous Federal Court panel upholding his conviction, 12-year jail sentence and fine for the misappropriation of RM42 million in SRC International funds.

"There was no denial of the applicant’s rights and there was no breach of natural justice in the case," he said.

The majority decision was agreed to by Federal Court judges Rhodzariah Bujang and Nordin Hassan, and Court of Appeal judge Abu Bakar Jais.

Chief Judge of Sabah and Sarawak Abdul Rahman Sebli, who chaired the five-member bench, dissented.

Ong said it was Najib's own counsel who had refused to make oral submissions from the onset of the appeal hearing last year, despite Hisyam Teh Poh Teik being allowed to do so by Chief Justice Tengku Maimun Tuan Mat, who led the previous apex bench that dismissed the appeal.

On the postponement of Najib’s appeal raised by the defence, Ong said the court had absolute discretion to allow or not any adjournment and that the earlier panel had exercised its discretion judiciously.

"Therefore, there is no merit for a review of that decision," he said.

On Najib’s bid for a review of the discharge of his counsel, Hisyam, from representing him during the appeal, the judge said the court found that the applicant’s argument that the court had no power to disallow the discharge of counsel was untenable as the power was provided for in Rule 137 of the Federal Court Rules 1995.

Meanwhile, on Najib’s application for a review of his conviction and sentence, the court held that the earlier panel had considered 94 grounds of appeal, written submissions and previous decisions of the lower courts which heard Najib's case.

The majority judgment concluded that there was no merit for a review of the previous court’s decision to uphold the conviction and sentence against Najib, said the judge.

"The applicant contends that his right had been breached. However, here, it is clear that the applicant is the author of his own misfortune. We do not see any reason to review any decision of the earlier panel of the Federal Court.

"Having considered all of the records, the court finds that all earlier convictions against the applicant are safe, and that the sentences imposed against the applicant are not excessive, and, therefore, affirmed," said Ong.

On the application for a review of Tengku Maimun’s recusal, Ong said that the law on recusals was also well-settled based on the principle of the "real danger of bias" test.

He said the decision by Tengku Maimun not to recuse herself was supported by the other members of the panel in a separate judgment.

The judge added that there was no quorum failure in any regard as a judge can hear any recusal made against them.

On Najib’s application to adduce new evidence on then High Court judge Mohd Nazlan Ghazali, Ong said the court agreed that the earlier Federal Court’s decision denying the request was made on the correct assessment of the evidence before it.

He said the arguments by the applicant were also untenable.

"We stress that the review process under Rule 137 should not be abused. Accordingly, the review application is dismissed," said Ong.

The new evidence was on the discovery that in 2006, Nazlan was the general counsel and company secretary for Maybank Group, with the ultimate overall responsibility for the management and administration of all legal departments within the entire group.

Today's decision marks the end of Najib’s attempt to be acquitted as his review application before the apex court was his last avenue via court proceedings.

This means that Najib, 69, will serve out the remainder of his 12-year jail term at Kajang Prison.

On Aug 23 last year, the previous Federal Court panel led by Tengku Maimun dismissed the appeal by the former Pekan MP to overturn his conviction and sentence. Najib began his 12-year jail term at Kajang Prison that same day.

Najib had also filed for a royal pardon in September last year.

On Jan 5 this year, he filed a petition before the United Nations Human Rights Council Working Group on Arbitrary Detention to ask for a release from prison or retrial of his SRC International case following an appeal hearing at the Federal Court which he claimed had serious defects and was contrary to the rules of international justice.

He was convicted and sentenced by Nazlan on July 28, 2020 to 12 years in jail and a fine of RM210 million. 

On Dec 8, 2021, the Court of Appeal upheld the High Court's decision, rejecting Najib’s appeal to set aside his conviction and jail sentence, as well as the fine.