PUTRAJAYA (Feb 27): The prosecution in Datuk Seri Najib Razak’s review emphasised to the Federal Court that the 2018 Facebook posting by the husband of Chief Justice Tun Tengku Maimun Tuan Mat had nothing to do with the SRC International Sdn Bhd case.

Ad hoc prosecutor Datuk V Sithambaram said SRC was formed on Feb 14, 2012, and questioned how Datuk Mohd Zamani Ibrahim’s posting six years later could bring about any bearing on the appeal that was heard in 2022, four years after the posting.

“There was no way SRC could have influenced the CJ’s handling of the appeal. This follows that it was not even the subject of the FB posting, as it only dealt with 1Malaysia Development Bhd (1MDB), and Umno’s loss in the 14th general election.

“Hence, the posting cannot be subject to the recusal application made last August. Furthermore, there was nothing secret in the FB posting, as many of the rakyat felt this way. It was something of public knowledge and hence it was of no consequence,” the senior lawyer added.

He added that the 1MDB facts were all there in the public domain, and everyone knew about them.

The lawyer further cited an Australian case, which had a scenario similar to Najib’s application to recuse the CJ in the SRC appeal, where the Australian Federal Court also dismissed such an application for recusal.

Last Wednesday (Feb 22), the ad hoc prosecutor argued that views by the spouse are no grounds to seek a recusal.

Sithambaram was again responding to Zamani's FB posting, which led to Najib filing a recusal application late at night on Aug 22, which was eventually disposed off by the bench led by the CJ.

The prosecution further added that mere reliance on spousal relationship as affirmed by Najib’s affidavit was in itself absurd and insufficient to give rise to actual or apparent bias.

“The alleged influence was based on a posting that was [made] four year ago before the SRC prosecution. As argued, Zamani’s posting was on 1MDB and Umno, and not on SRC, which in 2012 had already been placed under Minister of Finance Inc,” Sithambaram added.

“The defence cannot say the husband and wife shared the same view. There is nothing in Najib’s affidavit or evidence before the court that there is a real danger of bias.

The ad hoc prosecutor further added that Tengku Maimun could decide on whether to recuse herself or not.

However, Sithambaram said whether the CJ decided to sit on the bench or otherwise, there was already a majority decision by the previous bench to uphold the former prime minister’s conviction and sentence.

“The defence argues about a possible quorum failure as the CJ continued to sit [on the bench], but the prosecution says regardless of this, the bench was unanimous or in majority that the conviction and sentence were safe,” he added.

Sithambaram reiterated that Najib was the author of his own misfortune as he changed solicitors and lawyers two weeks before the scheduled appeal, knowing well four months in advance of the hearing date, and trusted his new lawyers.

“If the court continued to grant adjournment to the defendant due to the replacement of lawyers at the 11th hour, what kind of messages would the court give? The court was right in not granting the adjournment, as it was clear when the previous counsel, Hisyam Teh Poh Teik, and solicitor Messrs Zaid Ibrahim, Suflan and TH Liew & Partners were to seek an adjournment.

“Clearly, the appellant (Najib) was the author of his own misfortune, and this cannot result in the apex court to invoke Rule 137 of the Federal Court Rules 1995 to cite injustice for the former premier to ask for a retrial."

Sithambaram said the court had asked Hisyam whether he wanted to submit on behalf of his client, and Hisyam refused.

When Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, who led the five-member bench hearing the review, asked Sithambaram if the previous bench was only taking into consideration the prosecution’s submissions in upholding the conviction and sentence, the ad hoc prosecutor replied that it was not true.

He said the previous bench did look at the 94 grounds of appeal filed by the defence to consider the appeal in its entirety.

“For the above reasons, the prosecution asks this apex court to dismiss the review application,” Sithambaram added.

Najib is serving his 12 years' jail sentence and RM210 million fine, after being found guilty on Aug 23 last year on all seven counts with regard to the SRC case.

He was found guilty on three counts of criminal breach of trust, three charges of money laundering of RM42 million of SRC funds, and abuse of power over the approval of Retirement Fund Inc's (KWAP) RM4 billion loans to SRC.

The hearing that includes Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhozhariah Bujang and Datuk Nordin Hassan, as well as Court of Appeal judge Datuk Abu Bakar Jais, continues with the defence's reply.

When proceedings began on Monday (Feb 27), Abdul Rahman reprimanded lead defence counsel Tan Sri Muhammad Shafee Abdullah for being late. It began at 920am, even though it was supposed to start at 9am.

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