The day a woman of substance checkmated Najib and his counsel’s legal manoeuvres

Vol 2 No 28 | August 2022

Your Editor, Jamari Mohtar, reflects on the legal manoeuvres of former premier Najib Abdul Razak and his team of lawyers to undermine the image of the judiciary via the attempt to abuse the justice system and brought it to disrepute.

Here’s the timeline for the SRC International trial involving former premier Datuk Seri Najib Abdul Razak leading to the Federal Court’s verdict on Aug 23 dismissing his appeal:
After a 79-day trial held between April 3, 2019 and March 11, 2020, which saw 86 witnesses testify, Najib was on July 28, 2020, convicted by trial judge Nazlan Ghazali of all charges and sentenced to 12 years’ imprisonment and a RM210 million fine. Nazlan later released an 801-page judgment explaining his decision.
On Dec 8 last year, after a 15-day hearing, a three-member panel in the Court of Appeal comprising judges Abdul Karim Abdul Jalil, Has Zanah Mehat and Vazeer Alam Mydin Meera unanimously upheld both the conviction and sentence passed by the High Court. Their grounds are contained in a 317-page written judgment.
Najib filed an appeal to the Federal Court on the same day (Dec 8), and on April 25 this year filed a petition of appeal citing 94 matters, which he claims were errors of law and fact made by the appellate court in its judgment.
Shortly thereafter, the Federal Court fixed the former prime minister’s appeal for hearing from Aug 15 to 26.
So four months before the appeal in the Federal Court is to be heard, everyone knows the dates allocated by the Court for the final hearing.
On July 25, Najib appointed the law firm Zaid Ibrahim Suflan TH Liew & Partners as his solicitors in place of Shafee & Co, with Hisyam Teh Poh Teik replacing Shafee Abdullah as lead counsel.
Despite this being a mere three weeks away from the final hearing, Zaid Ibrahim Suflan TH Liew & Partners together with Hisyam accepted the appointment with gusto which means they were ready to take on the case.
In this regard, there are Rule 6(a) and Rule 24(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (LPPER) that set the barometer for the conduct of lawyers in the country and also reflects the underlying paramount duty of lawyers to the court as officers of the court.
Rule 6(a) of the LPPER states that an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the hearing dates fixed by the court; and the lawyer must also adhere to Rule 24(a) of the LPPER which provides that an advocate and solicitor shall make every effort to be ready for trial on the day fixed.
Read together, both rules clearly indicate that a lawyer must address his/her mind and assess that he/she is able to proceed with the case before deciding if he/she can take on the case.
Yet a day after their appointment, Najib’s new counsel wrote to the Federal Court seeking an adjournment of the appeal, which shows they are not ready to take up the case in time for the Aug 15 hearing.
The question is when they are not ready, why then did they accept their appointment by Najib as his new counsel and to wit, with much gung-ho?
You can’t blame those who saw this application for adjournment as a delaying tactic.
Whatever the reasons Najib gave for appointing a new team, his new lawyers’ first order of business in applying for adjournment constitutes a direct contravention of Rule 6(a) and Rule 24(a) of LPPER mentioned above

The application for adjournment really shows Zaid’s legal firm and Hisyam were not ready and thus, they should have rejected the appointment in the first place.
This would entitle the Bar to take disciplinary action against the firm and the lawyers concerned for contravening both rules.
The underlying paramount duty to the court, respect for the administration of justice, and upholding of the dignity of the legal profession, are imbedded and should be deeply rooted in all lawyers.
Hence the request for adjournment was rejected by the apex court both in writing and at case management three days later.
Let us analyse further the antics of Zaid Ibrahim Suflan TH Liew & Partners, and Hisyam after their application for adjournment was rejected.
During the hearing on 15 and 16 Aug, the appellant’s motions to adduce additional evidence were heard. After careful deliberation, on Aug 16, the Court unanimously dismissed the motions.
On the same day after the motions were dismissed, the Court instructed parties to proceed with the substantive merits of the appeals.
Hisyam then stated that he and his team, being the new lawyers for the appellant, were not prepared to argue the appeals and moved to adjourn the appeals for three to four months.
Even a layman like your Editor can see through that this is really “defiance of the highest order”, and to boot in front of the Chief Justice Tun Tengku Maimun Tuan Mat, who had earlier rejected the motion to adjourn.
But despite this, the CJ who is a very firm person tinged with benevolence, still stood down to consider the application for adjournment.
In the grounds of judgement issued later, the CJ said on Aug 16 itself, “we refused the adjournment and provided our written grounds stating our reasons.
“In those written broad grounds, we set out the procedural history leading up to the appeals and how parties were well aware that the appeals will proceed as scheduled and that the reason of not being ready to argue the appeals would not be accepted.
“While the appellant was entitled to change his counsel from Messrs. Shafee & Co. to Messrs. Zaid Ibrahim Suflan TH Liew & Partners, he did so mindful of the date of the appeals.
“He cannot then turn around and say, having changed them so late in the day and counsel having accepted the brief when they did, that new counsel and solicitors are not ready.

“In any event, we decided to commence the hearing on 18.8.2022 (Thursday) so as to allow counsel for the appellant time to organise themselves.”
More dramas were enacted by Hisyam when the apex court met again on Aug 18. The first drama was again in him having the gall to ask for adjournment on the same ground namely that he and his team were not prepared. This was again rejected.
With the adjournment refused, Hisyam then moved to a new drama to discharge himself as counsel for the appellant.
If he thinks he has finally pushed the CJ to the corner to force an adjournment, he is in for the rude shock of his life.
The Iron Lady of the Judiciary pronounced “that the Court possesses inherent jurisdiction to ensure that it can fulfill its mandate to administer justice, to prevent any abuse of process, and to ensure the machinery of the courts function in an orderly and effective manner.
“As counsel are key actors in the administration of justice, the Court has supervisory jurisdiction and authority to exercise inherent and supervisory control over counsel when necessary to protect its process.
“Hence, the Court, in invoking its inherent jurisdiction, refused counsel’s application to discharge himself as that would have left the appellant unrepresented. Tuan Haji Hisyam Teh thus remained on record as counsel for the appellant.”
If you think that’s the end of the drama enacted by Hisyam, then let’s see what happened after that.
After discharge was refused, the CJ invited Hisyam to make his submissions on the merits of the appeals. He refused. We can already see the intent of this drama is to force the CJ to adjourn the appeal – a delaying tactic.
Again, Hisyam may have experience the greatest shock of his life when in response to his refusal to make submissions the CJ proposed that the respondent submit first with a view to providing Hisyam time to prepare his submission.
For the uninitiated, in an appeal proceeding there are two parties – the appellant (Najib and his counsel) and the respondent (the pendakwa raya or the prosecution team).
And the hearing in an appeal case will start with the oral submission from the appellant first followed by the respondent.
When asked whether he would rely on the submission filed by the appellant in the Court of Appeal, the by now “mellowed” counsel confirmed that he would rely on them.
The respondent then commenced their submissions and the hearing was adjourned for lunch thereafter.
After the lunch break, Hisyam informed the Court that ‘the correct position is that the Court can rely on the appeal records’ which would include the submissions filed in support of the appeal in the Court of Appeal.

Most critically, the learned counsel requested for leave to file written submissions in the Federal Court and perhaps to amend the petition of appeal.
This was duly allowed and thereafter, the respondent completed their submission for the day and requested to continue the rest of their oral submission on the next day.
The next day on Aug 19 (Friday), before the respondent could continue with its oral submission, Hisyam dropped a bombshell – he informed the Court that the appellant (Najib) had of his own accord, discharged his solicitors Messrs. Zaid Ibrahim Suflan TH Liew & Partners.
Hisyam and his supporting counsel, however, were present in Court throughout the hearing. By the end of the day, the respondent completed their oral submission on the appeals.
In the grounds of judgement, it was pointed out on Aug18, Hisyam had stated that “he would rely on the submissions filed in the Court of Appeal.”
He then stated that “this Court could instead, as a matter of course rely on those submissions as they comprise part of the records of appeals.”
He then asked for permission to file written submissions, and if need be, amend the petition of appeal.
At the close of the hearing on Aug 19 however, he took a different position stating that he would not be making any submission despite the Court having given him the opportunity to do so.
In fact, on the same day (Aug 19) Hisyam was asked whether he will be making his submission on the next date fixed for hearing, i.e. the next Tuesday (Aug 23) to which he stated that he would not be submitting.
The Court then asked whether this included even oral submission, and the learned counsel confirmed that he would not be making any submission on any of the 94 grounds of appeal in the petition of appeal, even oral submission.
Nevertheless, the Court told him he had at least three days to prepare (the weekend and the Monday of Aug 22). Despite this, and in spite having asked for leave to file a written submission, he took the position that he will not submit.
On the morning of Aug 23, he again confirmed that he would not be making any submission on the appeal, in spite of his previous request to file a written submission.
This raises the tricky question of in light of counsel for the appellant’s refusal to make any submission, how would the Court proceed with the disposal of these appeals?

In the ensuing discussion on how would the Court proceed with the disposal of these appeals brought about by Hisyam’s refusal to make any submission, the respondent came out with seven precedents (cases) while Hisyam invited the Court to consider the case of Lee Kwan Woh v Public Prosecutor [2009].
The gist of Hisyam’s point is the case he cited underscores his point the denial of his right to submit amounts to a denial of the appellant’s right to a fair trial.
He then submitted that this right to a fair trial included a right for counsel to adequately prepare his submission, thereby entitling him to an adjournment.
However, the Court pointed out that Lee Kwan Woh, is not authority for the proposition that an appellant is entitled to an adjournment to prepare an effective and meaningful submission.
Unlike Lee Kwan Woh, the present case is not about the appellant was denied a right to submit, as Hisyam was invited repeatedly to submit but persistently refused to do so. Also the Court reiterated the grounds for refusing the prior application for an adjournment.
Moreover none of the authorities cited by both the appellant and respondent deal with the current specific situation where an application for discharge has been refused in the exercise of the inherent jurisdiction of the Court.
In other words, not being discharged, Hisyam is under a continuing duty to protect the appellant’s prosecution of the appeals by submitting them on its merits, which he refused.
However, the Court pointed out that the authorities cited by both parties dealt with cases where the accused himself is (1) absent or (2) left without his counsel or (3) counsel continues to represent the accused but is absent on the day fixed for trial or hearing.
It has been held in those cases that the Courts may still refuse to grant an adjournment and may proceed with and dispose of those cases even in the absence of the appellant or counsel. The proceedings in those cases were not vitiated on account of a breach of natural justice.
The present appeal, says the Court, is a case where counsel is present in name and in person but persistently refuses to make any submission despite repeated calls from the Court to do so.
This is also supported by section 313(1) and 312(2) of the Criminal Procedure Code.

Section 313(1) states: “When the appeal comes on for hearing the appellant, if present, shall be first heard in support of the appeal, the respondent, if present, shall be heard against it, and the appellant shall be entitled to reply.”
While Section 313(2) states: “If the appellant does not appear to support his appeal the Court may consider his appeal and may make such order thereon as it thinks fit:
“Provided that the Court may refuse to consider the appeal or to make any such order in the case of an appellant who is out of the jurisdiction or who does not appear personally before the Court in pursuance of a condition upon which he was admitted to bail, except on such terms as it thinks fit to impose.”
The present appeals, says the Court, mirror a position similar to that envisaged in section 313(2) in that while the appellant and his counsel are physically present, they deliberately refuse to participate in the appeal hearing.
“This, in our view, is equivalent to the appellant ‘not appearing to support’ the appeals. In such circumstances, the Court is empowered to proceed with the appeals.
“Having said that, we shall now proceed to consider the appellant’s appeals by having regard to the appeal records including the petition of appeal setting out no less than 94 grounds of appeal, the submissions filed in the Court of Appeal and the written judgments of the High Court and the Court of Appeal.
But before the Court can proceed with this, Hisyam dropped his final bombshell and that is the appellant, Najib, has applied to recuse the CJ from hearing his current appeal case.
Saying that the application was filed yesterday, Hisyam told the five-person apex court bench that the recusal was based on information obtained a few days ago.
Najib claimed to have found out on Aug 17 about a Facebook post allegedly made by the CJ’s husband, Zamani Ibrahim.
The former premier claimed the post, dated May 11, 2018, had, among others, allegedly expressed happiness at Najib being “dethroned” following the general election (GE14) that year.

Deputy public prosecutor V Sithambaram then contended the recusal application against the CJ brings disrepute to the administration of justice.
“This is the clearest abuse of the process of the court, as you (Najib’s legal team) did not reveal everything, you wait for the progress of the case, when everything seems against you, you bring out the pigeon,” the DPP tells the apex court.
The prosecutor also pointed out that the whole recusal application against the top judge was done in bad faith (mala fide) as the Facebook posting by her husband was made in 2018.
Later, the Federal Court rejected the application to recuse the CJ and rules that there is no nexus between the 2018 Facebook post and that of Najib’s appeal. The Court also noted the Facebook post was put up before Najib was ever charged at the Kuala Lumpur High Court.
With the recusal out of the way, verdict was delivered:
“In the circumstances, and having pored through the evidence, the submissions and the rest of the records of appeal, we find the appellant’s complaints as contained in the petition of appeal devoid of any merit.
“On the totality of the evidence, we find the conviction of the appellant on all seven charges safe. We also find that the sentence imposed is not manifestly excessive.
“These appeals are therefore unanimously dismissed and the conviction and sentence are affirmed.”
The verdict of the Federal Court caught many people by surprise since many especially among Najib supporters had expected that it would drag on until the final day of the hearing allotted by the Court four months earlier i.e. up to August 26.
But for Najib and his legal team, they could already see it coming as the writing is already on the wall.
That was why Najib was reported to have said to his supporters during the final break before the verdict was announced that he could end up in jail by the time the hearing ended on that day.
It was indeed a touch of class that after the counsel for the appellate had mounted drama after drama on delaying the hearing via the countless motion for adjournment, counsel’s application for discharge and the recusal of the CJ, the latter not only was able to proceed with the disposal of these appeals, but also made the verdict on the same day.
Even blogger Raja Petra of Malaysia Today was caught off-guard when in the morning of judgement day, his blog published the grounds of judgement dated Aug 26 when the Court hadn’t made any verdict yet that morning.
It would have been a leak of the original document, which Raja Petra is famous for, had it been dated Aug 23.
Apparently it transpired that the leak version of the grounds of judgement was a working draft of the court which had not been finalised yet, and was modified by certain parties to cast aspersion against the court as if the verdict was already made before the hearing ends.
In a statement, the court registrar’s office described the leak as a deliberate act to negatively affect the integrity of court operations and administration of justice.
The matter is now under police investigation.

Read more on the timeline for the SRC International appeal, the hearing at the Federal Court and the verdict on the appeal:

Najib’s SRC International appeal: A quick timeline

Najib’s SRC appeal to proceed as scheduled

Najib’s bid to cite new evidence an attempt to delay SRC case, says prosecution

Najib’s new legal team to discharge itself if SRC appeal proceeds on Aug 15

Federal Court rejects Hisyam Teh’s discharge bid, hearing for Najib’s last appeal starts now

Barred from leaving Najib, Hisyam Teh says will file fresh submissions on top of Shafee’s defence for final appeal

Najib’s new lawyer changes mind on filing fresh submissions

Najib’s lawyer has three days to prep oral submissions

CJ’s support for ‘Walk of Justice’ suggests bias, says Hisyam

Najib’s team cites social media posts by CJ’s husband in bid to recuse her

Tengku Maimun tak perlu tarik diri, permohonan Najib ditolak

Shafee is back: Lawyer returns to assist Najib’s new legal team

Shafee’s back in Najib’s corner for SRC International appeal

CJ denies Shafee’s request to adjourn hearing

Najib Razak’s final statement in court

Najib fails in final SRC International appeal, as Federal Court upholds conviction and sentence

Najib goes to jail today

Grounds of judgement for Najib’s SRC final appeal

Court confirms leaked Najib judgment a ‘modified’ draft

Ex-PM to prisoner: Najib Razak’s SRC International case

Bar insists Najib not a victim in SRC International case, counter-narrative ‘highly mischievous’

Abuse of Process Brings Disrepute to Our Justice System

Politicians Should Refrain from Making Comments That Could Tarnish Public Opinion about the Judiciary

In letter to judges, Zaid Ibrahim firm claims Shafee made ‘false’ statement in open court during Najib’s last SRC International appeal

Tracing back the jailing of a former premier Najib Abdul Razak to when it all started will yield a better, powerful lessons than rejoicing over it with motherhood statements such as “justice has been finally served” or “it is just the beginning of the fight against corruption”, as these are mere platitudes that would not provide any solution to a problem.
When it comes to the crunch, those who earnestly talk very passionately about corruption will be the first to admit that they don’t have the solutions to today’s complex problems of fighting corruption.
Worse is when they themselves could be involved in corruption either knowingly or unknowingly – a contradiction isn’t it, but still possible in the realm of probability.
What they do have is a mastery of general principles on how to go about in eradicating the roots of corruption in a society.
Not good enough if it’s not contextualised to the unique time and space of a particular setting for otherwise it will become an airy-fairy thing.
If solutions are not forthcoming, then at least learn and grasp the lessons first.
Hence, Amanah president Mohamad Sabu is spot on when he urged Malaysians against being arrogant or overjoyed about Najib Razak going to jail over the SRC International case.
Mohamad, also known as Mat Sabu, said Najib’s conviction should instead be made a lesson for all to steer clear of emulating the former prime minister by committing small or major crimes.
“We should not be happy when something bad happens to someone. Malaysians must continue looking to build the nation and eradicate corruption, so that Malaysia becomes a prosperous and peaceful nation with integrity, now and in the future.
“Take every catastrophe that happens to others as a lesson for us all. Let’s not be arrogant or snobbish. Instead, let us all seek forgiveness from God,” he said in a Facebook post.
The initial catalyst that led to the jailing of Najib occurred when the second most powerful man in the country, the then deputy prime minister, Tan Sri Muhyiddin Yassin, broke rank with his Umno colleagues in speaking out against the 1MDB shenanigan created by Najib.

Criticise him for all you want as no man is perfect but it takes guts and gumption to break rank with your colleagues and most importantly the courage to speak out against the most powerful man in the country, the prime minister.
It reminds me of an authentic hadith of the Prophet (peace be upon him) that says “the best jihad is to speak the truth in front of an oppressive ruler,” like what the late lord president (the position of chief justice as it was then known) Tun Salleh Abas did more than 30 years ago.
Muhyiddin was not the first to speak out against the 1MDB scandal and has the choice to play it safe because his position will be upgraded to the prime minister should Najib be deposed by others. Instead he chose the path that was sprinkled with thorns.
This action alone created the impulse and further catalysts that snowballed into first, a partnership with Tun Mahathir Mohamad that led to the formation of Bersatu, which in turn led to the reconciliation between Mahathir and his nemesis, Datuk Seri Anwar Ibrahim of Pakatan Harapan (PH), which in turn led to the ultimate victory of PH in the 14^th general election.
With PH holding the rein of power for the first time, it became relatively easier to investigate and charge in court a former prime minister, something that is not only impossible but also unthinkable under an Umno-led government before PH.
But notice how this has now become possible and thinkable under a much better outcome when under an Umno-led prime minister, Datuk Seri Ismail Sabri Yaakop, the jailing of Najib finally took place.
Ismail Sabri’s resolve for the government particularly himself not to interfere in the court cases of Umno leaders charged with corruption has contributed significantly to the judiciary and only the judiciary’s guilty verdict for Najib.
It is no mean feat for Ismail to be firmed on this, as reportedly the court cluster in Umno has been harassing him starting from the election night during the Johor election when a group of Umno members shouted at him to dissolve Parliament.
And there was also a rumour some time ago on the late reappointment of the present Attorney General (AG) where for a few days Malaysia was without an AG, which was attributed to the intense pressure Ismail purportedly faced from the court cluster not to reappoint the AG. This issue was even brought up in Parliament.
In Ismail’s firmness as the PM in not interfering in the court cases of Umno leaders charged with corruption including all the cases involving Najib, in no small measure, we can again see the hands of Muhyiddin in this.
When he was the PM, he set a good example by being steadfast in refusing to entertain the plea of certain quarters to interfere in the court cases of Umno leaders until it costs him the premiership.

It was Muhyiddin who appointed Ismail as the deputy PM, and when Ismail succeeded him as the PM, he apparently learnt from his former boss the need to turn a deaf ear to all pleas for the PM to interfere in the court cases of Umno leaders and to just leave it to the judiciary.
It was also Muhyiddin who as the supremo of Perikatan Nasional (PN) had insisted PN will not support the formation of a government led by an Umno PM who’s tainted with corruption charges.
This paves the way for a PN government led by Umno’s Ismail Sabri, after the PN government led by Muhyiddin collapsed due to the chicanery of the court cluster headed by Najib and Umno president Datuk Seri Ahmad Zahid Hamidi.
There are some, particularly PH leaders and supporters who would arrogantly rejoiced in Najib going to jail bragging that it was the PH administration that first set in motion the process leading Najib to prison by charging him in court.
But what these people failed to see is this PH’s success is limited to only charging Najib in court. The PN Administration led by Muhyiddin scored a better outcome when Najib was convicted by the High Court.
Obviously in Najib case, a scenario of being convicted is better than being charged in court, and securing a jail sentence is the best.
Hence, the best outcome was scored again by the PN Administration, this time led by an Umno PM Ismail Sabri in getting Najib jailed.
This is the problem when one arrogantly starts playing the scoring point game. For every one credit you claim, others can claim a much better or best credit.
What is there to be proud of and to claim credit for when only one person is jailed, no doubt a big fish. What about the other big fishes?
The moment to be proud is when we are able to build a corrupt-free nation and the credit for this goes to each and every member of the Keluarga Malaysia.
In this there is a powerful lesson in that the pursuit of eradicating corruption must never be politicised. Once this takes place, sincerity is gone and ulterior motive takes centre stage.
The prelude to this is when you see so many people especially politicians and non governmental organisations rushing to claim credit for just one tiny speck of corruption being eliminated.

For these people what better time to be seen as a corruption buster than the time of election fever!
It is during this time that one can clearly see the opposition putting in its earnest effort to bring down the government via so many expose of corruption in the corridor of power in order to win an election, when busting corruption should be an all season affair not just in the heat of an election fever.
Witness the muds thrown by PKR’s deputy president, Rafizi Ramli at Special Functions Minister, Datuk Dr Abdul Latiff Ahmad; he can’t even wait for the Royal Commission of Inquiry to be formed!
Another powerful lesson from the jailing of the former PM is it is a huge mistake to associate or label one political party with corruption.
Umno is often described as the party that is corrupt to the core. But if this is true, how was it possible for the jailing of Najib to take place at a time when the government was led by Umno?
And how was it possible earlier on for Najib to be convicted at a time when Umno, even though not leading the government but was part of the ruling coalition?
Let’s look at the accuser – the political coalition which is a lot more holier than the corrupt to the core Umno i.e. PH.
The moment it was in power all charges against Lim Guan Eng was dropped when his court hearing was already near its tail end.
And despite the PH manifesto clearly spelling out the appointments of very senior government officials were to be made in consultation with a parliamentary select committee, and a politician must not head the Malaysian Anti Corruption Commission, a PH prime minister conveniently went on to appoint a politician as the head of MACC without even having the courtesy to consult his Cabinet.
All these show that to eradicate corruption, politicians should not be given the leading role to spearhead anti-corruption efforts, and when this takes place in the heat of an election fever, rest assured it is a grab for power that is the ulterior motive and not eradicating corruption per se.

Read more on the rejoicing on Najib going to jail, interference in court decisions, corruption slander at the height of election fever:

Don’t overreact over Najib going to jail, says Mat Sabu

Jangan gembira, angkuh atas musibah menimpa orang lain, kata Mat Sabu

Muhyiddin spilled details of Najib’s request for judicial meddling attempts in letter to lawyers

Muhyiddin: Zahid asked me to intervene in his court case after showing stack of files

“I’ve never been approached by any party to interfere in court decisions” – Tengku Maimun

They’re displeased with my refusal to meddle with court decision – PM

PM Ismail Sabri says not under pressure from Umno over Najib’s last SRC International appeal

Rafizi: Who is the ‘big shark’ in the LCS scandal?

Minister’s second wife involved in LCS scandal, claims Rafizi

Dr Abdul Latiff challenges Rafizi to prove Zainab is his wife, says prepared to be investigated over LCS scandal

Opposition hoping ship scandal will torpedo BN, say analysts

LCS scandal may be a non-issue in GE15, say analysts

Perikatan Nasional calls for RCI to look into LCS project scandal

Umno Youth adds to growing calls for RCI on LCS scandal

Open Letter to Hishammuddin: 10 Reasons why we need a RCI into LCS scandal

Latheefa, sila letak jawatan jika bermaruah – AMK

KP SPRM: Pelantikan Latheefa Koya muktamad – Tun Mahathir

Court drops graft charges against Guan Eng, Phang

The SRC International trial (79 days) involving former premier Datuk Seri Najib Abdul Razak was held between April 3, 2019 and March 11, 2020. Trial judge Nazlan Ghazali Najib on July 28, 2020, convicted Najib of all charges and sentenced him to 12 years’ imprisonment and a RM210 million fine. Nazlan later released an 801-page judgment explaining his decision.

On Dec 8 last year, after a 15-day hearing, a three-member panel in the Court of Appeal comprising judges Abdul Karim Abdul Jalil, Has Zanah Mehat and Vazeer Alam Mydin Meera unanimously upheld both the conviction and sentence passed by the High Court. Their grounds are contained in a 317-page written judgment.

Najib filed an appeal to the Federal Court on the same day (Dec 8), and on April 25 this year filed a petition of appeal citing 94 matters, which he claims were errors of law and fact made by the appellate court in its judgment. Shortly thereafter, the Federal Court fixed the former prime minister’s appeal for hearing from Aug 15 to 26.

So four months before the appeal in the Federal Court is to be heard, everyone knows the dates allocated by the Court for the final hearing.

On July 25, Najib appointed the law firm Zaid Ibrahim Suflan TH Liew & Partners as his solicitors in place of Shafee & Co, with Hisyam Teh Poh Teik replacing Shafee Abdullah as lead counsel.

Despite this being a mere three weeks away from the final hearing, Zaid Ibrahim Suflan TH Liew & Partners together with Hisyam accepted the appointment with gusto which means they were ready to take on the case.

In this regard, there are Rule 6(a) and Rule 24(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (LPPER) that set the barometer for the conduct of lawyers in the country and also reflects the underlying paramount duty of lawyers to the court as officers of the court.

Rule 6(a) of the LPPER states that an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the hearing dates fixed by the court; and the lawyer must also adhere to Rule 24(a) of the LPPER which provides that an advocate and solicitor shall make every effort to be ready for trial on the day fixed.

Yet a day after their appointment, Najib’s new counsel wrote to the Federal Court seeking an adjournment of the appeal, which shows they are not ready to take up the case in time for the Aug 15 hearing.

The question is when they are not ready, why then did they accept their appointment by Najib as his new counsel and to wit, with much gung-ho?

Whatever the reasons Najib gave for appointing a new team, his new lawyers’ first order of business in applying for adjournment constitutes a direct contravention of Rule 6(a) and Rule 24(a) of LPPER mentioned above.

The application for adjournment really shows Zaid’s legal firm and Hisyam were not ready and thus, they should have rejected the appointment in the first place. This would entitle the Bar to take disciplinary action against the firm and the lawyers concerned for contravening both rules.

The underlying paramount duty to the court, respect for the administration of justice, and upholding of the dignity of the legal profession, are imbedded and should be deeply rooted in all lawyers.

During the hearing on 15 and 16 Aug, the appellant’s motions to adduce additional evidence were heard. After careful deliberation, on Aug 16, the Court unanimously dismissed the motions.

On the same day after the motions were dismissed, the Court instructed parties to proceed with the substantive merits of the appeals.

Hisyam then stated that he and his team, being the new lawyers for the appellant, were not prepared to argue the appeals and moved to adjourn the appeals for three to four months.

Even a layman can see through that this is really “defiance of the highest order”, and to boot in front of the Chief Justice Tun Tengku Maimun Tuan Mat, who had earlier rejected the motion to adjourn.

In the grounds of judgement issued later, the CJ said on Aug 16 itself, “we refused the adjournment and provided our written grounds stating our reasons.

“In those written broad grounds, we set out the procedural history leading up to the appeals and how parties were well aware that the appeals will proceed as scheduled and that the reason of not being ready to argue the appeals would not be accepted.

“While the appellant was entitled to change his counsel from Messrs. Shafee & Co. to Messrs. Zaid Ibrahim Suflan TH Liew & Partners, he did so mindful of the date of the appeals.

“He cannot then turn around and say, having changed them so late in the day and counsel having accepted the brief when they did, that new counsel and solicitors are not ready.

“In any event, we decided to commence the hearing on 18.8.2022 (Thursday) so as to allow counsel for the appellant time to organise themselves.”

With the adjournment refused, Hisyam then created a drama to discharge himself as counsel for the appellant.If he thinks he has finally pushed the CJ to the corner to force an adjournment, he is in for the rude shock of his life.

The Iron Lady of the Judiciary pronounced “that the Court possesses inherent jurisdiction to ensure that it can fulfill its mandate to administer justice, to prevent any abuse of process, and to ensure the machinery of the courts function in an orderly and effective manner.

“As counsel are key actors in the administration of justice, the Court has supervisory jurisdiction and authority to exercise inherent and supervisory control over counsel when necessary to protect its process.

“Hence, the Court, in invoking its inherent jurisdiction, refused counsel’s application to discharge himself as that would have left the appellant unrepresented. Tuan Haji Hisyam Teh thus remained on record as counsel for the appellant.”

After discharge was refused, the CJ invited Hisyam to make his submissions on the merits of the appeals. He refused. We can already see the intent of this drama is to force the CJ to adjourn the appeal – a delaying tactic.

Again, Hisyam may have experience the greatest shock of his life when in response to his refusal to make submissions the CJ proposed that the respondent submit first with a view to providing Hisyam time to prepare his submission.

When asked whether he would rely on the submission filed by the appellant in the Court of Appeal, the by now “mellowed” counsel confirmed that he would rely on them.

Hisyam later informed the Court that ‘the correct position is that the Court can rely on the appeal records’ which would include the submissions filed in support of the appeal in the Court of Appeal.

Most critically, the learned counsel requested for leave to file written submissions in the Federal Court and perhaps to amend the petition of appeal. This was duly allowed.

The next day on Aug 19 (Friday), before the respondent could continue with its oral submission, Hisyam dropped a bombshell – he informed the Court that the appellant (Najib) had of his own accord, discharged his solicitors Messrs. Zaid Ibrahim Suflan TH Liew & Partners.

On the Aug 19 Hisyam was asked whether he will be making his submission on the next date fixed for hearing, i.e. the next Tuesday (Aug 23) to which he stated that he would not be making any submission on any of the 94 grounds of appeal in the petition of appeal, even oral submission.

Nevertheless, the Court told him he had at least three days to prepare (the weekend and the Monday of Aug 22). However on the morning of Aug 23, he again confirmed that he would not be making any submission on the appeal. n

This raises the tricky question of in light of counsel for the appellant’s refusal to make any submission, how would the Court proceed with the disposal of these appeals?

In the ensuing discussion on how would the Court proceed with the disposal of these appeals brought about by Hisyam’s refusal to make any submission, the respondent came out with seven precedents (cases) while Hisyam invited the Court to consider the case of Lee Kwan Woh v Public Prosecutor [2009].

The gist of Hisyam’s point is the case he cited underscores his point the denial of his right to submit amounts to a denial of the appellant’s right to a fair trial. He then submitted that this right to a fair trial included a right for counsel to adequately prepare his submission, thereby entitling him to an adjournment.

However, the Court pointed out that unlike Lee Kwan Woh, the present case is not about the appellant was denied a right to submit, as Hisyam was invited repeatedly to submit but persistently refused to do so. Also the Court reiterated the grounds for refusing the prior application for an adjournment.

Moreover none of the authorities cited by both the appellant and respondent deal with the current specific situation where an application for discharge has been refused in the exercise of the inherent jurisdiction of the Court.

In other words, not being discharged, Hisyam is under a continuing duty to protect the appellant’s prosecution of the appeals by submitting them on its merits, which he refused.

However, the Court pointed out that the authorities cited by both parties dealt with cases where the accused himself is (1) absent or (2) left without his counsel or (3) counsel continues to represent the accused but is absent on the day fixed for trial or hearing.

It has been held in those cases that the Courts may still refuse to grant an adjournment and may proceed with and dispose of those cases even in the absence of the appellant or counsel. The proceedings in those cases were not vitiated on account of a breach of natural justice.

The present appeal, says the Court, is a case where counsel is present in name and in person but persistently refuses to make any submission despite repeated calls from the Court to do so.

It mirrors a position similar to that envisaged in section 313(2) in that while the appellant and his counsel are physically present, they deliberately refuse to participate in the appeal hearing.

“This, in our view, is equivalent to the appellant ‘not appearing to support’ the appeals. In such circumstances, the Court is empowered to proceed with the appeals. Having said that, we shall now proceed to consider the appellant’s appeals by having regard to the appeal records including the petition of appeal setting out no less than 94 grounds of appeal, the submissions filed in the Court of Appeal and the written judgments of the High Court and the Court of Appeal.

But before the Court can proceed with this, Hisyam dropped his final bombshell and that is the appellant, Najib, has applied to recuse the CJ from hearing his current appeal case.

Najib claimed to have found out on Aug 17 about a Facebook post allegedly made by the CJ’s husband, Zamani Ibrahim. The former premier claimed the post, dated May 11, 2018, had, among others, allegedly expressed happiness at Najib being “dethroned” following the general election (GE14) that year.

Deputy public prosecutor V Sithambaram then contended the recusal application against the CJ brings disrepute to the administration of justice.

“This is the clearest abuse of the process of the court, as you (Najib’s legal team) did not reveal everything, you wait for the progress of the case, when everything seems against you, you bring out the pigeon,” the DPP tells the apex court.

The prosecutor also pointed out that the whole recusal application against the top judge was done in bad faith (mala fide) as the Facebook posting by her husband was made in 2018.

Later, the Federal Court rejected the application to recuse the CJ and rules that there is no nexus between the 2018 Facebook post and that of Najib’s appeal. The Court also noted the Facebook post was put up before Najib was ever charged at the Kuala Lumpur High Court.

With the recusal out of the way, a unanimous verdict of dismissing the appeal was delivered.

It was indeed a touch of class that after the counsel for the appellate had mounted drama after drama on delaying the hearing via the countless motion for adjournment, counsel’s application for discharge and the recusal of the CJ, the latter not only was able to proceed with the disposal of these appeals, but also made the verdict on the same day.

Even blogger Raja Petra of Malaysia Today was caught off-guard when in the morning of judgement day, his blog published the grounds of judgement dated Aug 26 when the Court hadn’t made any verdict yet that morning.

It would have been a leak of the original document, which Raja Petra is famous for, had it been dated Aug 23.

Apparently it transpired that the leak version of the grounds of judgement was a working draft of the court which had not been finalised yet, and was modified by certain parties to cast aspersion against the court as if the verdict was already made before the hearing ends.

In a statement, the court registrar’s office described the leak as a deliberate act to negatively affect the integrity of court operations and administration of justice.

The matter is now under police investigation.

Regards,

Jamari Mohtar

Editor, Let’s Talk!

Your Editor, Jamari Mohtar, reflects on the legal manoeuvres of former premier Najib Abdul Razak and his team of lawyers to undermine the image of the judiciary via the attempt to abuse the justice system and brought it to disrepute.

Recent Posts

Discover more from