Unfair to punish Najib for lawyer's mistakes, says dissenting judge

The sole dissenting judge in Najib Razak’s review application today held that it was unfair for the former prime minister to pay the price for the mistakes of his counsel in the SRC International appeal hearing.

Chief Judge of Sabah and Sarawak Abdul Rahman Sebli, who chaired a five-member bench, said Najib’s counsel Hisyam Teh Poh Teik was denied the opportunity to submit as he said that he was not prepared to do so after taking the case at the last minute.

"The counsel did not submit after informing the panel of judges that he was unprepared to do so. This led to only one party submitting before the earlier panel, which was the deputy public prosecutor V Sithambaram.

"The applicant (Najib) was not heard at all. The applicant was at a great and substantial injustice. He was in a disadvantaged state, as he was not represented during the appeal. It is unfair that the applicant paid the highest price for the mistakes of his counsel.

"The applicant’s only interest was to see his lawyer act for him in his best interests, nothing more and nothing less," the judge said in allowing Najib’s application to review the decision of the previous Federal Court panel which upheld his conviction, 12-year jail sentence and fine for the misappropriation of RM42 million in SRC International funds.

In the 4-1 majority judgment, the four judges who dismissed the former prime minister’s application were Federal Court judges Vernon Ong Lam Kiat, Rhodzariah Bujang and Nordin Hassan, and Court of Appeal judge Abu Bakar Jais.

In his decision, Rahman said the previous bench should have let Najib address the panel before the prosecution made its submissions.

"This did not happen, the prosecution was allowed to submit for two full days… this was surreal," said the judge, adding that the conviction should be quashed as there was no legal representation.

Rahman also opined that an adjournment should have been granted, not to scuttle the case, but to allow for the former prime minister to find a new counsel.

"The applicant (Najib) has the right to effective counsel. In the present case, the earlier panel denied the applicant the right to have effective counsel. The counsel was shackled."

"The previous panel said that it had given Najib’s counsel four months to prepare. This was not true. The four months were for Messrs Shafee and Co, Najib’s previous counsel. They were not for his new counsel Hisyam. Hence, the application for review for the adjournment must be granted," said Rahman.

On July 28, 2020, then High Court judge Mohd Nazlan Ghazali, who is now a Court of Appeal judge, sentenced Najib to 12 years in jail and fined him RM210 million for the misappropriation of RM42 million in SRC International funds.

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

On Aug 23, 2022, a five-member bench of the Federal Court led by Chief Justice Tengku Maimun Tuan Mat dismissed the appeal by the former Pekan MP to overturn the conviction and sentence. Najib began his 12-year jail term at Kajang Prison that same day.
 
Najib then filed the review application to quash the earlier Federal Court verdict. He also filed for a royal pardon in September last year.

On Jan 5 this year, he likewise 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 the appeal hearing at the Federal Court which he claimed had serious defects and was contrary to the rules of international justice.