Could Justice Nazlan's SRC verdict be free from politics?

To most Malaysians, politics interfere in every aspect of Malaysian life including in the court of justice.

More so,  Tun Dr Mahathir had no respect for the law and had the reputation of interfering in the judiciary. This time using Dato Gopal Sri Ram.

Dato Nazlan Ghazali was aware his reputation was tarnished by Gopal's claim to members of the legal community that Nazlan was "his boy". Apparently, he is not the only victim of Gopal's manipulative and bully tactics to impose himself on other judges and lawyers.

Tan Sri Apandi Ali revealed on his FB in mid-June of Gopal Sri Ram "sent to see him in January 2018 by Tun Dr Mahathir Mohamad to persuade him to arrest Najib, the then prime minister".

Gopal kept silent and only responded three weeks later to brushed it off as self corroboration and meant to frustrate his 1MDB trial. Apandi said he has proofs and responded with a 59 page affidavit. No reply from Gopal yet.

Be that as it may. It is undeniably an indication that politics could influence the outcome of the SRC case.

As one retired intelligence officer said, "The judges and lawyers will deny but politics will be a consideration case in any big cases such as this".

So far, no evidence indicate Tan Sri Muhyiddin's interference. He has no one to do it. Nevertheless, a guilty verdict will clear the political logjam and uncertainty for the ruling coalition.

Nazlan to deliver verdict 

Justice Nazlan was given a major case that attracted world attention for his first assignment as criminal judge. One popular FB notice he was assigned few more of Mahathir's series of political persecution cases.

And, he made a controversial verdict to release two DAP ADUNs suspected of involvement in LTTE based on the argument SOSMA law used was unconstitutional. It made curious minds wonder ever since.

While all eyes are on Najib, and its implication on Malaysian politics and GE15, the legal community will be watching the judge, who whisperings in the halls of justice are saying he is a Federal Court judge in the making.

Free Malaysia Today reported:

All attention on Najib’s corruption trial as judge delivers verdict on Tuesday

V Anbalagan - July 26, 2020 1:40 PM

Najib Razak is the first former prime minister to be charged with a criminal offence.

KUALA LUMPUR: Malaysia will be the focal point on Tuesday when High Court judge Mohd Nazlan Mohd Ghazali delivers his verdict in Najib Razak’s trial on the RM42 million corruption charges relating to SRC International Sdn Bhd.

Najib, 67, is the first former prime minister to be charged for a criminal offence. He gave evidence under oath for about 10 days to rebut the prosecution’s case.

Najib, who is Pekan MP, will be acquitted if Nazlan finds the defence has created a doubt in the prosecution’s case.

The judge will convict Najib in the event he finds the prosecution has proved its case beyond reasonable doubt.

V Sithambaram

Once found guilty, Najib’s status changes from innocent person to a convict, and the right to bail pending appeal is not automatic as he has to show special circumstances.

This was also in the case of Anwar Ibrahim who was found guilty of abuse of power and sodomy by the High Court about 20 years.

He failed in the Court of Appeal and the Federal Court to get bail.

Najib could remain MP should he file an appeal on conviction and sentence as the Federal Constitution provides for such circumstances.

However, he has to settle the fine imposed by the court.

Shafee Abdullah

Najib, 67, was ordered to enter his defence in November to charges of abusing his power as prime minister by giving government guarantees on a RM4 billion loan from Retirement Fund Incorporated to SRC International.

This offence carries a jail term of up to 20 years and a fine of not less than five times the RM42 million amount under the Malaysian Anti-Corruption Commission Act.

Najib, is also facing three charges of misappropriating RM42 million of SRC International funds.

Each offence under Section 409 of the Penal Code carries a maximum jail term of up to 20 years, whipping and a fine.

He is also facing three counts of money laundering charges for receiving RM42 million which were proceeds from unlawful activities, with the offences punishable under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) 2001. 

It provides a maximum 15 years’ jail, and a fine of five times the RM42 million.

All offences were allegedly committed at the Prime Minister’s Office in Putrajaya and at AmIslamic Bank Bhd here between 2011 and 2015.

The defence has taken the position that there was no abuse of power as Najib’s participation in the decision-making process at Cabinet meetings was above board.

Further, it contended, there was no misappropriation of RM42 million of SRC money as the amount that entered into his account was part of a donation from the Arab royal family.

The defence also contends the money laundering charges would be dropped if the court rules Najib had been cleared of any wrongdoing for abuse of power and criminal breach of trust.

The 91-day trial began on April 3 last year. The prosecution called 57 witnesses to try to establish a prima facie case against Najib. The defence closed its case on March 11 after calling 19 witnesses.

Ad-hoc prosecutor V Sithambaram led the prosecution team while counsel Muhammad Shafee Abdullah and Harvinderjit Singh were the defence lawyers.

Political equation

The judgement could determine Najib's political career whether he could make a comeback or failing which, he may not even run in Pekan for the upcoming GE15. South China Morning Post columnist analysed:

Will verdict in Najib’s first 1MDB trial trip up Malaysia snap election contenders?

• A guilty verdict on Tuesday would end former PM Najib Razak’s campaign to rehabilitate his image and make a bid for his old job, says an analyst
• A not guilty ruling may strengthen the formerly ruling Umno party, but that may not be good news for PM Muhyiddin Yassin

Bhavan Jaipragas and Tashny Sukumaran
Published: 9:30am, 26 Jul, 2020

Former Malaysian prime minister Najib Razak will hear the verdict in his trial, involving seven of the 42 criminal charges he is facing over his alleged role in the looting of Malaysia’s 1MDB state fund. Photo: AP

A Malaysian court will on Tuesday hand down the verdict for the first of former prime minister Najib Razak’s five criminal trials linked to the 1MDB financial scandal, and observers say the ruling is likely to have far-reaching consequences not just for his personal future, but for the country’s tumultuous politics as well.

With Prime Minister Muhyiddin Yassin – propped up currently by Najib’s powerful United Malays National Organisation (Umno) – expected to trigger snap elections soon, the outcome of Najib’s legal troubles could weigh on the poll results.

Media reports have suggested the election could be called by year’s end to help the ruling Perikatan Nasional bloc shore up its two-seat parliamentary majority.

It is not yet certain if Muhyiddin – who is not an Umno member – will be the prime ministerial candidate for the ruling camp if polls are called. Instead, talk has been swirling that Najib, prime minister from 2009 to 2018, could make a shock comeback.

The Kuala Lumpur Courts Complex, where Najib has been on trial. Photo: Bloomberg

A guilty verdict would “terminate [Najib’s] ongoing campaign since the May 2018 general election to rehabilitate his image and make a second leadership bid” to return as prime minister, said Harrison Cheng, a Malaysia watcher with the Control Risks consultancy.

If he is found not guilty, analysts say the veteran politician’s current political resurgence will continue in the lead up to the general election, which will pit him against now-ousted political rivals – including elder statesman Mahathir Mohamad – who initiated the cases against him after their victory in 2018’s general election.

In the event of a not-guilty verdict and if “Najib somehow returns to helm Umno without dividing the party, then it’s likely that Umno will emerge as the dominant party from the general election”, Cheng said. In that scenario, “Najib will probably repeat Mahathir’s feat of becoming prime minister twice in his career”, the Singapore-based analyst said.

Other observers told This Week in Asia they would be closely monitoring public reaction to the ruling, adding that no matter the outcome, the judgment will worsen the country’s political polarisation.

Political scientist Awang Azman Awang Pawi said that for Najib’s Umno, an acquittal will vindicate their argument that his legal travails were a witch-hunt by Mahathir’s camp.

“For conservative voters, they see this as evidence Najib is innocent and persecuted politically. All this will strengthen the conservative vote in support of Umno and Perikatan Nasional,” said Awang Azman.

Malaysian Prime Minister Muhyiddin Yassin, who assumed office in March. Photo: DPA

On the other hand, supporters of Umno’s key opponents Mahathir and on-off ally Anwar Ibrahim, are likely to view an exoneration of the former leader as a “travesty of justice”, said Azmil Tayeb, a political science lecturer at the Universiti Sains Malaysia. This, he said, could in turn spur the currently disparate bloc to once again gel together to take on Najib and his formidable allies – as they successfully did in 2018.

Unprecedented political turmoil in March saw the multiracial Pakatan Harapan government that toppled Najib on an anti-corruption campaign turfed out of power.

Muhyiddin, a Pakatan Harapan defector, gained power after he proved to the king that the new Perikatan Nasional had the support of the majority of MPs.

Muhyiddin who? Najib’s still the real problem in Malaysia: Mahathir
13 Jun 2020

At long last, a verdict

No matter the long term impact, however, analysts said Tuesday’s verdict will mark a major landmark in the 1MDB trials. The verdict relates to the first trial involving Najib that stretches back to April last year.

The seven charges in this case are part of the 42 criminal charges Najib is facing over his alleged role in the looting of some US$4.5 billion from the 1Malaysia Development Berhad (1MDB) state fund during his tenure as prime minister.

Of the five different trials, prosecutors are believed to have proceeded with this particular case first as the money trail is contained within Malaysia, making it far less complicated and more likely to lead to a guilty verdict. Two other trials are under way.

Najib Razak, Malaysia's former prime minister, prays with his supporters as he arrives at the Kuala Lumpur Courts Complex to stand trial. Photo: Bloomberg

This case is known in media circles as the SRC International trial, referencing the 1MDB subsidiary that prosecutors say funnelled 42 million ringgit (US$9.85 million) of ill-gotten funds from the state investor to Najib’s personal accounts.

Najib, who turned 67 last week, faces the prospect of a lengthy jail sentence if Justice Mohd Nazlan Ghazali finds him guilty of just one of the seven charges.

Any reasonable person, in particular a man of finance, will know or ought to have known what was going on. Prosecutor V. Sithambaram

In closing arguments, Najib’s defence team sought to pin blame on wrongdoing at SRC International on the fugitive financier Jho Low and other key personalities who were named during the trial. These included Nik Faisal Ariff Kamil – SRC International’s former chief executive who is currently on the run – and Joanna Yu, a bank relationships manager who managed Najib’s personal bank account.

Malaysian-born Low was a close acquaintance of Najib and has been identified by prosecutors in Malaysia and the United States – where separate criminal investigations over the scandal are ongoing – as a central figure in the controversy.

Yours for US$100 million: 1MDB fugitive Jho Low’s Beverly Hills hotel
7 Jul 2020

The financier has rejected the allegations against him as politically motivated and said he has no plans to return to Malaysia to face justice. There are outstanding arrest warrants for him in Malaysia and neighbouring Singapore.

Najib’s lawyers say the former prime minister believed the money that flowed into his accounts – originating first from SRC International – formed part of political donations pledged to him by the Saudi royal family.

For this reason, the lawyers argue that Najib did not question the source of incoming funds into his accounts.

Najib Razak, Malaysia's former prime minister, leaves the Kuala Lumpur Courts Complex. Photo: Bloomberg

In his final submissions, V. Sithambaram, the lead prosecutor, said the defence argument was a fig leaf. “[The defence] are making a lot of hue and cry that the accused was misled to believe he still had Arab funds when he used up the 42 million ringgit,” he said.

“This is nothing but a myth. The fact that 42 million ringgit came into his account is not disputed … he is just saying that he did not know it was SRC money. This is ridiculous. Any reasonable person, in particular a man of finance, will know or ought to have known what was going on,” Sithambaram said.

Goldman, Malaysia agree to US$3.9 billion settlement over 1MDB scandal
24 Jul 2020

Tuesday’s verdict follows Friday’s settlement worth a total US$3.9 billion between the Perikatan Nasional government and Goldman Sachs over the investment bank’s role in raising funds for 1MDB.

As part of the deal, Malaysia will drop previously filed criminal charges against Goldman Sachs, which denies any wrongdoing.

Earlier last week, Najib was ordered by a court to settle 1.69 billion ringgit (US$397.41 million) in unpaid taxes over seven years while he was still in office.

Ex-Malaysian PM Najib ordered to pay US$400 million in unpaid taxes
22 Jul 2020

Bhavan Jaipragas
Bhavan is Asia Correspondent for the SCMP, covering breaking news, politics, diplomacy, trade and Southeast Asian macroeconomic trends. His work for the Post's Asia desk also focuses on the region's multifaceted interactions with the United States and China. A Singapore native, Bhavan previously worked for Agence France-Presse.

Staged?

One former DPP wondered as to why Goldman Sachs settlement was announced four days before the SRC decision. It cannot be scripted by anyone from PH administration because it Tan Sri Idrus Haron and Tengku Dato Zafrul Aziz that could do the closure. . 

Not only the Goldman Sachs settlement, few other developments indicate that the verdict is known and the public is being prepped for the eventuality. Court ordered Najib to pay RM1.69 billion tax to  Inland Revenue Board.

Round one of the seat distrbution between BN, PAS and PPBM completed last week. Few UMNO leaders suggesting Muhyiddin to return to UMNO. Utusan Malaysia's frontpaged Ku Li's interview with the headline for Zahid, Najib and problematic leaders to make way.   

Mahathir and son, Dato Mukhriz have been chanting Najib Najib Najib at the blackout gathering in Alor Setar and in Parliament to reiterate the kleptocrat and robbery accusation. It served to revive his pre-GE14 political narrative and pre-empting an acquital.

Astute observer believe a guilty verdict could leave him void of any narrative to continue his fight against Muhyiddin. Political pundits are predicting his eventual return to UMNO upon Muhyuddin assuming power in UMNO.

Whether UMNO is throwing Najib under the bus, it does not seem so. His recent birthday was celebrated at PWTC and attended by party leaders. There are special prayers for Najib today held at PWTC this afternoon, organised by several groups at few locations at night, and same nationwide within the UMNO establishments.

Unsaid is a guilty verdict will solve the political logjam. However, a former political operator for Mahathir disagree and insist it will not get solved. If it is going against Najib, it could happen against other UMNO leaders.

Honolulu slip up?

The poser by The Edge in their June 18th article is quite relevant: Was Najib a victim or protagonist in the conspiracy?

Opinions of learned legal minds and information from sources considered as close proxy of Justice Nazlan ranges from acquital to guilty on all counts. Guilty for CBT poses the toughest challenge for Justice Nazlan.

It requires existence of trust over the property (entrustment), wrongful act and dishonesty. For a criminal charge, it requires proofs beyond reasonable doubts. Generally, most legal observers saw the case is full of doubts especially the testimony of Ambank Manager, Joanna Yu.

A lawyer with the Bar Council is of the view that the case should not have commenced. Three key witness; deceased Dato Adlin Alias, Najib's former Principal Private Secretary, Taek Jho Low and Nik Faisal are not brought to court to corroborate the testimonies.

The evidence chain is broken and huge gap in evidence exist.

The defense that prosecution could not prove the element of knowledge points to an innocent Najib. However, it is the small issues that could pose a problem. Taken from The Edge article, could the issue below nail Najib for CBT:

The prosecution, however, insisted that Low, Nik Faisal, as well as the late Datuk Azlin Alias — Najib’s principal private secretary — had acted under the former premier's instructions. 

Low did not act "behind the scenes", Sithambaram argued, as the businessman’s actions indicated his full knowledge of Najib's spending patterns. In fact, on several occasions, Low took proactive steps to ensure there were sufficient funds in Najib’s accounts, he said, highlighting one particular time when Low contacted Yu to ensure that a credit card payment by Najib would go through. 

Sithambaram was referring to a payment by Najib in Honolulu, Hawaii, in December 2014, which did not go through because of a credit card system issue. Low informed Yu through BlackBerry Messenger that he received a message from "MNR" — referring to Najib — that the transaction had not gone through.

An astute follower claimed Najib never denied he has spoken or met Jho Low, but he denied telling him to pay for his Honolulu bill. However, The Edge reported he did spoke on money matters. Was any audio evidence submitted?

Abuse of power?

Putting aside prosecution opinion that the CBT offense is complete because dishonesty was commited, another way to get Najib in or end his political career is on abuse of power. To quote from MMO's report on Justice Nazlan decision to order defense:

In delivering his judgement, Mohd Nazlan ruled that Najib played a role in the establishment of SRC International and its RM4 billion loan from the Retirement Fund Incorporated (KWAP) in 2011.

“Because of the accused being a prime minister and the finance minister, he was able to cause the establishment of SRC International that was made possible by his overarching authority.

“And as the PM and Minister of Finance Incorporated (MoF Inc) the accused also caused the introduction of a new article 117 to appoint himself as adviser emeritus of the company, to whom advice on strategic matters concerning SRC must be referred,” he said.

He said the crucial ability of Najib as the shareholder to have convinced — via his position as MoF Inc — SRC International’s directors to adhere to important decisions such as the deposits of the bulk of the company funds overseas could not be emphasised enough.

He said that the evidence of involvement of or on the series of actions taken by the accused in respect of SRC International demonstrated that the accused held an interest beyond that of public office.

One of these instances included Najib’s failure to disclose or excuse himself from the deliberations and approvals on the Cabinet memorandum on two government guarantees for the loans extended by KWAP to SRC International at two Cabinet meetings he chaired.

“The argument that the accused had not given instructions but merely made requests and had no role to play in securing the loans from KWAP cannot withstand scrutiny.

The ruling prima facie could have been made to satisfy public interest to have all out in the open. It is usually based on the consideration of on-balance probability and basic ingredients met. However, criminal charges require burden of proof beyond reasonable doubt.

To get Najib in on abuse of power but not on CBT, it will be similar to getting Dato Seri Anwar Ibrahim for abuse of power instead of his first charge for sodomy. On hind sight, it turned out there were invisible hands of a short man dictating judges from high court to federal court.

The basic premise for a specific time and place for crime committed were not met. It should have been thrown out at the early stage. Mahathir ....

Abuse of power offense has too wide a definition and is itself open for abuse. To sentence Najib for his involvement to assist SRC, it implies any Minister assisting to speed up bureaucrasy and assist to resolve administrative problems will be deemed as abusing their power.

Dato Adham Baba may need to hire a lawyer immediately. 

It makes no sense and unreasonable for Justice Nazlan to make Najib guilty for any political master by using only the offense of abuse of power.     

Ball in his court

A retired Federal Court judge was asked sometime ago on the possible verdict for Dato Najib's SRC case Tuesday. He highlighted the major shortcomings of the case made. At the end of his answer, he summed it up as depends on the judge.     

It came to this blogger's knowledge that Justice Nazlan was asked by a fellow judge how he would do the SRC case. Justice Nazlan said without hesitant he will decide based strictly on the law. One pro-BN lawyer have dealt with Justice Nazlan and acknowledged him as meticulous.

The risk is a "wrong" judgement on this politically sensitive case may land Justice Nazlan in the cold room. It  happened to Dato Zabidin Md Diah for chickening out against overwhelming evidences for guilty verdict on Dato Seri Anwar Ibrahim's second sodomy case in 2012.

The implication of Justice Nazlan's decision is far reaching. It means neither could he be seen as basing his judgement merely on the common folks logic of "takkanlah Najib tak tahu" (don't tell me Najib does not know) which Sithambaram used in his submission.

Nor could it be based on the simplistic explanation of money went into his personal account. It is not so simple.

There should not be any suspicion the judgement is planned for guilty at High Court level and acquittal at Court of Appeal. That smells underhanded politics!

The decision must be convincing that it is conclusively proven Najib has knowledge. Apparently, the Penang High Court accepted Lim Guan Eng claim of no knowledge of the market value of his Jalan Pinhorn bungalow and acquited him in 2018.

With doubts in abundance, the elephant in the room of missing key witnesses and obvious evidence gap cannot be ignored.