PETALING JAYA: Najib Razak’s new lawyers are expected to moderate arguments as to why the Federal Court should allow his motion for a re-trial of the SRC International case, a source close to the former prime minister has told FMT.
“There will be a complete change in approach and perspective in how the appeal is to be run moving forward,” the source, who wishes to remain anonymous, said.
That change is apparent from the affidavit filed last week, which was prepared by Najib’s new legal team, he added.
Najib’s lawyers are now expected to train their focus on a single core point, namely that trial judge Nazlan Ghazali was clearly in a position of conflict in relation to persons, events, and issues he had dealt with during the trial.
The former prime minister’s lawyers will tell the apex court that Nazlan ought to have voluntarily recused himself since in his capacity as general counsel of Maybank he was privy to deliberations and decision-making which brought about the incorporation of SRC International as a subsidiary of 1MDB, and the bank’s disbursement of loans of RM 4.17 billion to 1MDB and RM140 million to Putra Perdana Development.
The lawyers will say that even if he had not considered them relevant initially, the judge ought to have disqualified himself as soon as those matters came to light during the trial. He should have at that point immediately recused himself as these were “absolute instances of a conflict of interests”, the source said.
They will also submit to the apex court that the judge’s failure to disclose his conflict prior to or during the trial deprived Najib the opportunity of applying to recuse Nazlan.
Najib’s legal team will also seek to persuade the Federal Court that events subsequent to the trial and the initial appeal warrant the admission of further evidence to determine whether Nazlan was presiding despite his conflict of interests.
The lawyers will seek to justify why the top court should hear oral testimony of several witnesses, including four MACC investigators, to determine whether Najib’s contention has been made out.
Najib’s latest affidavit, however, has made it clear he does not wish his lawyers to suggest that the MACC was investigating Nazlan on allegations of corruption.
Likewise, no arguments will be advanced to suggest any impropriety in the outward transfer of High Court judge Sofian Razak from the criminal court in which the trial took place.
“The tone of arguments will be entirely dispassionate and neutral,” the source said.
“The point that will be made is that there has been a violation of Najib’s constitutional rights as well as basic principles of natural justice,” he said.
“Ultimately, it is that new information, evidence and documents, disclose the trial judge’s conflict of interests, and because none of these were available or known until after the current appeals to the Federal Court were filed, a re-trial must be ordered for the sake of justice and fairness.”
Najib was convicted on July 28, 2020 on seven charges of abuse of power and misappropriation of RM42 million in SRC International funds after a lengthy and widely publicised 76-day trial. He was sentenced to 12 years’ imprisonment and fined RM210 million.
His appeal to the Court of Appeal was dismissed on Dec 8 last year.
The Federal Court has scheduled Najib’s motion seeking a re-trial and the appeal proper for hearing from Aug 15 to 26.