Who is Muhammad Nazlan Mohd Ghazali?
Today, the trial judge in Najib Tun Razak’s SRC case, Muhammad Nazlan Mohd Ghazali, has come under fire. Allegations of conflict of interest are being made against him and there are even calls for him to be arrested. Who is Muhammad Nazlan Mohd Ghazali? And is the allegation of conflict of interest made against him justified?
NO HOLDS BARRED
Raja Petra Kamarudin
A. First, a bit about this background.
• Shook Lin & Bok – corporate and conveyancing and banking law (1991-1993)
• Securities Commission (last position was as General Manager of the Enforcement Division: 1993- 2000)
• Zaid Ibrahim & Co, Partner of Firm’s Equity Capital Markets Department (2000-2005)
• Maybank’s group general counsel & company secretary (2005-2015)
• Maybank’s Independent & Non-Executive Director (resigned on 28th March 2013)
• Nazlan left Maybank on 8th April 2015
• Appointed as a Judicial Commissioner on 10th April 2015
• Elevated and Appointed to High Court Judge on 30th January 2017
• Elevated and Appointed as a Court of Appeal Judge on 4th February 2022.
(Source: www.kehakiman .gov.my)
B. Nazlan’s role in Maybank that raises potential conflict
• RM6.17 billion loan to part finance acquisition of Tanjong
In Nazlan’s role as the General Legal Counsel of Maybank, in May 2012 he would have been exposed or at the very least aware of the very large loan of RM6.17 billion loan obtained by 1MDB to partly finance the acquisition of Tanjung Energy Group.
Nazlan’s exposure to the loan by 1MDB has been confirmed by the minutes of the board meeting, which was leaked by Mahazalimreturns tweet.
• IPO of 1MDB’s Energy Assets
Also after the acquisition of Tanjong, Maybank Investment Bank together with Deutsche Bank was appointed to assist to launch an IPO of 1MDB Energy Group. Due diligence would have had to be conducted by the Maybank Legal Department of Maybank Investment Bank which reported to directly to Maybank General Legal Counsel, Nazlan.
• Default of RM6.17 billion loan was granted to 1MDB
Almost a year after the RM6.17 billion loan was granted to 1MDB, 1MBD had not repaid the loan as required pursuant to the terms. The consortium of creditors which include Maybank threatened 1MDB with an “event in default” if it failed to pay up. In early 2015, 1MDB was able to resolve the matter with Maybank.
C. Appointment to preside over SRC
Prior to being appointed as a Judicial Commissioner, Nazlan had no criminal law experience.
On 1st August 2018, Nazlan was assigned to take over from the original YA Judge Dato Mohd Sofian to preside over SRC case.
The usual practice of Malaysian courts, involving high profile individuals and a political figure like Dato’ Sri Najib and public interest cases, are usually presided by the most senior and experienced judge.
But surprisingly in the very early stage of the SRC proceedings, a senior judge YA Dato Indera Mohd Sofian was replaced by a junior judge with no experience presiding over criminal cases.
D. SRC was a subsidiary of 1MDB
SRC was subsidiary of 1MDB. Najib was the Advisor Emeritus of 1MDB and SRC, Finance Minister and Prime Minister.
E. Conflict of Interest
Is there a conflict of interest in Nazlan’s appointment as the Judge to preside over the SRC case?
The answer is clearly yes because the very pertinent fact that Nazlan signed the minutes in his capacity as the Group Company Secretary of Maybank makes him a potential witness in 1MDB coupled with the fact that Nazlan was the Group General Legal Counsel.
The current evidence of the Prosecution witnesses in 1MDB such as Shahrol (the ex-CEO of 1MDB) Hazem (ex-CEO of 1MDB) and Azmi, all have testified that Tim Leissner and Jasmine Loo (General Legal Counsel of 1MDB) were very much involved in the acquisition of Tanjong.
According to the prosecution witnesses, Jasmine was very much involved in the fundraising of the acquisition of Tanjong. Surely, then the General Legal Counsel of 1MDB would have been involved in negotiating the terms of the RM6.17 billion loan. Especially, since 1MDB was 100% owned by MOF Inc, which in turn was owned by the government of Malaysia, surely Nazlan would have ensured, at the very least, he had supervised the RM6.17 billion loan.
Additionally, given the size of the loan, Nazlan would be expected to deal with his counterpart, i.e. Jasmine Loo, who is currently a fugitive and Jasmine Loo was Jho Low’s proxy. Also given Jho Low’s propensity to deal with senior bankers, it is very conceivable that Jho Low would have dealt with Nazlan.
Nazlan should have disclosed the potential conflict in order to avoid later questions about judicial credibility. No doubt best practises and prudence suggest that when in doubt, a judge ought to avoid the possibility of a disqualifying situation and at the very least inform the parties and the lawyers who can in turn decide what to do with the information.
In comparison YA Dato Indera Mohd Sofian, the first judge that presided over the SRC case, it appears to have been transferred just because his brother was a UMNO member holding position in the party.
Also in Tengku Adnan’s corruption case, the Court of Appeal held that Nazlan should recuse himself because another accused in the case changed his plea to guilty. The Court of Appeal recused Nazlan from hearing Tengku Adnan’s case because there was a danger that he could be biased. (https://www.malaysiakini.com/news/526201)
And again in the Anwar Ibrahim case, YA Wahab Patail recused himself just because his brother signed the order to charge Anwar.