Do Najib’s new lawyers deserve more time to bring SRC appeal?

A litigant who changed lawyers was doing so at the risk of the courts disallowing requests for postponements, adding that the new counsel must be ready to follow court dates which have already been scheduled.

(FMT) – The Federal Court’s decision last Friday not to allow Najib Razak’s newly constituted legal team more time to prepare for his case has surprised some observers, with questions being raised as to whether the court is being unduly harsh on the former prime minister.

On July 26, law firm Zaid Ibrahim Suffian TH Liew & Partners notified the apex court that it had been appointed by Najib to take over conduct of his SRC International appeal in place of Shafee & Co, with senior criminal lawyer Hisyam Teh Poh Teik named to replace Shafee Abdullah as lead counsel.

It was a change which Najib said became necessary following the Kuala Lumpur High Court’s refusal five days earlier to admit Jonathan Laidlaw, QC, a renowned white collar criminal lawyer in the UK, to lead submissions before Malaysia’s apex court.

Immediately following its appointment, Najib’s new legal firm, led by former law minister Zaid Ibrahim, wrote to the court seeking an adjournment of the appeal which had been scheduled to run from Aug 15 to 26, citing insufficient time to prepare for what is destined to be a landmark case in the nation’s 65-year history.

That request was shot down at case management last Friday, leaving the team a mere three weeks to prepare.

“The Federal Court has been very stringent in managing the timeline of this particular appeal,” a senior lawyer, speaking on condition of anonymity, told FMT.

“It gives the wrong impression of haste on the court’s part to dispose the appeal, which is something I find quite troubling.”

Najib’s present appeal was filed on Dec 8 last year, immediately after the Court of Appeal unanimously dismissed his appeal from a conviction by the High Court on July 28, 2020 on seven counts of abuse of power and misappropriation of RM42 million in funds belonging to SRC International.

Solicitors Shafee & Co followed this by filing Najib’s petition of appeal on April 25.

The Federal Court then fixed the present appeal dates and directed both the prosecution and defence teams to file their written submissions by July 31.

A change of solicitors is quite commonplace in legal cases, the senior lawyer told FMT, and in any case, it is one which Najib is legally entitled to make.

“Article 5(3) of the Federal Constitution grants every accused person, including Najib, the constitutional right to a lawyer of his choice, which is a constituent of the right to a fair trial,” he said. “That necessarily includes the right to discharge counsel and appoint a replacement.”

No reasons need be given by an accused to justify the change, and no sanction of the court is required for the exercise of this right, he said.

The lawyer said that in Najib’s case, the court’s only concern should be whether to allow his new legal team’s request for more time to prepare.

“That calls for the court to exercise its judicial discretion by evaluating the circumstances giving rise to the request, guided by established principles of law,” he said.

In making that evaluation, he said, the court was obliged to take into account that Najib has a constitutional right to a fair hearing, which includes the right to legal representation of his choosing.

This is especially so because his personal liberty is at stake, he said, adding that since this was his final appeal, Najib stands to be incarcerated as soon as the Federal Court pronounces its verdict.

“Given those factors, a court should ordinarily be slow to deny a request to postpone the hearing so long as it was reasonable and provided it was not an attempt to abuse the court’s processes,” he said.

Commenting on the Federal Court’s directions, Malaysian Bar president Karen Cheah pointed to Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules 1978 which states that lawyers may only take over a case if they were able and ready to proceed with the dates fixed by the court.

Cheah said this meant that a litigant who changed lawyers was doing so at the risk of the courts disallowing requests for postponements, adding that the new counsel must be ready to follow court dates which have already been scheduled.

She added that the courts had a discretion as to whether to allow applications for the discharge of counsel and postponement of hearing dates.

“Quite apart from the courts’ discretion, the new lawyers may be liable for professional misconduct and open for disciplinary actions, unless they can justify with good reasons why a postponement was sought,” she said.

Najib’s was no ordinary trial. First charged on July 4, 2018, the case saw 86 witnesses testify (prosecution, 57; defence, 29) over 76 hearing days between April 2019 and March 2020.

Trial judge Nazlan Ghazali’s verdict was delivered orally on July 28, 2020 and was followed by an extensive written judgment spanning more than 500 pages in which he analysed multiple provisions in more than 20 pieces of legislation and cited some 350 precedent cases.

That judgment generated an appeal which was argued in the Court of Appeal over 15 hearing days and gave rise to another 317-page judgment, which is the subject matter of the present appeal.

On top of that, a motion filed by Najib in June this year asking the Federal Court to admit further evidence and order a retrial on the ground that Nazlan ought to have recused himself from presiding on account of an alleged conflict of interests has added numerous additional novel constitutional and legal issues which the apex court will have to contend with during the present appeal.

Shafee’s discharge means that Najib’s new defence team has its work cut out to get up to speed.

That work involves combing finely through thousands of pages of witness statements, documentary evidence tendered at trial, the written judgments of both the High Court and the Court of Appeal, as well as voluminous notes of evidence recorded over the course of the entire proceedings to identify and resolve the numerous legal and factual issues raised.

“On the face of it, the lawyers’ plea for more time appears entirely reasonable as it is obviously necessary to allow them to present their client’s case at a level of competence commensurate with the status and nature of the appeal,” the senior lawyer said.

“So far, there has been nothing to suggest that Najib and his legal team are abusing the processes of the court or otherwise acting improperly.”

Surprised by its rigidity in the matter, a veteran Umno politician, also speaking on condition of anonymity, believes that the Federal Court’s stand appears to be “out of character”.

“In recent years, the judiciary has been rightly lauded for its independence, especially in high-profile cases,” he said. “Our judges have repeatedly demonstrated virtues of integrity, fairness, honesty and transparency which, until recently, were thought to have been forever lost.”

Despite its complexities, Najib’s case has taken just over four years to reach the apex court, he noted.

“I suppose overwhelming public interest and outrage have dictated that the case move swiftly,” he added, noting that even Anwar Ibrahim’s Sodomy II trial ran for more than six years.

“My own observation is that throughout the proceedings, both Najib and his counsel have always accorded the courts due respect,” he said. “Never once has Najib mocked the courts.”

He said that some consideration must also go to the two personalities fronting Najib’s new legal team.

“Zaid Ibrahim and Hisyam Teh are both well-known in legal circles as professionals and gentlemen who will never lend their names to any attempt to abuse the court’s processes,” he said, “and it is unlikely that they would ask for anything beyond what is reasonable.”

“Whispers on the ground” suggest that Najib deserves fairer treatment than what he appears to be getting, he said.

“If, at the conclusion of the appeal, the Federal Court decides that the former prime minister must serve time for his crimes, let it be only because he has failed to raise a meritorious defence, not because he was prevented from doing so,” he said.