Without some of us realizing it, it’s already March, meaning that it had been almost a year since the Pakatan government took over Malaysia. There had been a lot to look forward to back then, and one of them was Tun Dr Mahathir’s promise to clear Malaysia of corruption. Among other things, he had pledged to arrest the infamous “Malaysian Official 1” and other sharks, as well as getting to the bottom of the 1MDB scandal.
We’re pretty sure by now everyone knows that Malaysian Official 1 is really the former Prime Minister Najib Abdul Razak, but almost a year on, if you haven’t been paying close attention, there seems to be no real progress in that department. Some on social media have been getting antsy over it, and are wondering if Najib and his lawyers are intentionally dragging out the case for as long as they can. Recent news of the appeals being delayed because Najib’s lead counsel had injured his hand by playing with his pet dog definitely didn’t help.
With all the hullabaloo about Najib’s trial delays, you might be surprised to know that there has technically been only one actual trial delay on record, but probably not for a lack of trying. We’ll get to that later, but with news about Najib being in court popping up in no particular order, we wouldn’t blame you for thinking it’s one HUMONGOUS court case, but in actuality…
Najib is facing up to 5 separate trials for 42 charges
If you remember Anwar Ibrahim’s sodomy case (the sequel, aka Sodomy Part II), you probably have an idea of how long court cases can take, especially if it’s a high-profile one. Anwar was charged in 2008, tried in 2010 and 2011, acquitted in 2012, de-acquitted in 2014, and jailed in 2015. That’s a total of 7 years from charge to jail… for a single charge (Section 377B of the Penal Code).
Najib’s got 42 charges against him (as of February this year), and for now it seems that they will be taken care of in five separate trials:
- Charges related to SRC International Sdn Bhd (RM42 million)
- 1 charge of power abuse
- 3 charges of criminal breach of trust, or CBT
- 3 charges of money-laundering
- Charges related to various 1MDB-related dealings (RM2.6 billion)
- 4 charges of power abuse
- 21 charges of money laundering
- Charges featuring Irwan Serigar, former Treasury Sec Gen (RM6.6 billion)
- 6 charges of CBT
- Charge related to tampering with a state audit report into 1MDB, feat Arul Kanda.
- 1 charge of power abuse
- Charges related to proceeds from illegal activities (RM47 million)
- 3 charges of money laundering
So to sum up, there are 6 charges of power abuse (Sec 23 of the Malaysian Anti-Corruption Commission Act 2009), 9 charges of CBT (Sec 409 of the Penal Code), and 27 charges of money laundering (Sec 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Funding Act 2001), which will be a pain should any of the 42 manage to stick. And how it works is that these five cases seem to run together, i.e. they’re not waiting for one case to end before starting another one. Here’a a simple timeline:
Anyways, none of these charges had been around for even a year, so we can expect some more time until any of them matures. Still, you might have noticed that the trial dates for the first one had already passed…
Despite several appeals, the actual trial for SRC had only been postponed once
Before we get into it, a little background on the case. Basically, what happened here was sometime in 2011/12, SRC International took a RM4 billion loan from the Retirement Fund Inc (KWAP), and to get that loan it needed a government guarantee from the Cabinet. Najib allegedly used his position to provide that, hence the power abuse charge. The three CBT charges are for the RM42 million Najib allegedly got in return between 2014-2015, in batches of RM27 mil, RM5 mil and RM10 mil.
These four charges were brought against him in July last year, and in August three charges of money laundering was added to the RM42 mil transfer, bringing the total to 7. The trial dates were set back in August to be from Feb 12 to 28, and Mar 4 to 29. So between July and December last year, Najib’s team had put forth three applications, which is fancy lawspeak for requests. The first one is for a gag order on the case to prevent the media from speaking about it, the second one is for the discovery of documents and statements, and the third is a challenge to the appointment of a certain lawyer to be the lead prosecutor in the trial.
All three have been dismissed by the court at some point, and Najib’s team had appealed against those. Then January came, and with one month to go to the trial, Najib’s team had asked for the trial to be postponed, as the three appeals had not been settled yet. This request had however been rejected by the court, but Najib’s team did not appeal the decision as both sides agreed that whatever the outcome of the three appeals will be, if Najib wins the main trial it won’t cancel out the win (a nullity). So they decided that the three appeals can go along with the main trial.
While those three appeals had not been important enough to grant a stay, a postponement did happen, due to a fourth appeal.
Najib’s trial got postponed because of… AG Tommy Thomas!? (this part is really like stupid confusing)
One thing you should know about this case was that the charges were initially brought against Najib at the Sessions Court, and were later transferred to the High Court, like many other cases. To do that, Tommy Thomas, acting as the public prosecutor, applied for something called a certificate of transfer that will move the case from the lower Sessions Court to the higher High Court. This was a background detail in the beginning, but on February 7, a few days before the trial was scheduled to start, Thomas suddenly applied to withdraw his certificate of transfer.
Basically, what Thomas tried to do was let the court do the transferring instead of him as the public prosecutor, in light of cases from the past two years that sort of empowers the courts. Despite the transfer by certificate being the accepted practice for a while now and Najib’s lawyers never having said anything about it, Thomas decided to be careful anyways and pre-emptively withdrew them to prevent Najib’s team from using it against the prosecution in the future.
So the High Court judge had then decided that the public prosecutor can do that without affecting previous proceedings up until now. Since the certificates have been withdrawn, the case technically fell back to the Sessions Court, so the judge transferred it right back to the High Court using Section 417 of the Criminal Procedure Code.
Najib’s team did not agree to that, and they argued that the public prosecutor went beyond his powers regarding the withdrawal of the certificates, and if they don’t sort out what are the powers of the public prosecutor and the High Court are before the main trial, the results could be nullified if it turned out that the Court of Appeals agreed with their argument, leading to a retrial which is a waste of the public’s time and money.
They also later noted that every case decided in Malaysia becomes a legal precedent under common law (something that judges can refer to in future similar cases), and Najib’s case would ‘without a doubt’ create new laws in Malaysia, so the decision is pretty important.
“If we don’t get this right, and the law is put in the backseat just for purposes of rushing this case, other future cases, maybe even people you personally know could be affected. And that would create a rather sad situation towards the Rule of Law,” – Muhammad Farhan Shafee, one of Najib’s lawyers, as reported by the Malay Mail.
So on Feb 11 (one day before the trial), despite protests from the prosecution, the Court of Appeal decided that there’s reason enough to put the main trial on hold until this issue got sorted out. They also found that there’s no evidence of delaying tactics by Najib’s lawyers, so for now things will probably be on hold until this appeal (plus the three others from earlier) are heard at the Court of Appeals on Mar 11 and 12, and while three had been heard, the fourth had to wait until Friday due to recent circumstances.
Aaaaaaaaaand there’s still another four trials to cover. Wah, so exhausting leh. Anyhoo…
Although there’s pressure to bring Najib to trial, it needs to be done right
In light of the trial postponement, Tun Mahathir had asked Malaysians to be patient in spite of the delays in Najib’s proceedings.
“Supposedly, by now we should have seen those who were charged with various offences involving the 1Malaysia Development Berhad (1MDB) and SRC International Sdn Bhd brought to the court. But as a government that abides by the rule of law, we respect the court’s decision to postpone the case… We respect the court even though the rakyat has been asking why those who were clearly guilty of corruption are yet to face trial. And although we (government) have tried our best, we have to respect the law,” – Tun M, as reported by The Sun Daily.
While some may see the statement by Najib’s lawyers as nothing more than a masked attempt to delay the trial, there’s something to be said about not sacrificing the sanctity of the judicial system in favor of a faster conclusion to the Najib saga. The people’s trust in the Malaysian judiciary system has been eroded for the past few years, in part due to their alleged manipulation by the people in power and allegedly being used for money laundering, among other things.
While there had been attempts at improvement since last year, the judiciary still needs to restore the public’s trust in them, and a high-profile case such as Najib’s might just be the best opportunity to do so.