KUALA LUMPUR, Aug 20 — The prosecution is "using a sledgehammer to kill a fly” with the four power abuse charges in the 1MDB trial against former prime minister Datuk Seri Najib Razak, his lawyer Tan Sri Muhammad Shafee Abdullah claimed in the High Court today.

Shafee was arguing why the four charges — in which Najib was accused of abusing his position to get gratification totalling RM2.27 billion of 1Malaysia Development Berhad-linked (1MDB) funds for himself — are defective.

Shafee said the prosecution had never specified which position was misused by Najib, but had instead lumped in all three of his former roles together.

"In our case, they have alluded to Datuk Seri Najib having simultaneous positions as prime minister, finance minister and chairman of the board of advisers. And they said you have abused your position.

"Now, Yang Arif, the prime minister and finance minister has got separate functions, they are designated with separate functions. And chairman of board of advisers of 1MDB — as I said — has got no executive function, completely zero. But they threw it in, like omnibus,” he said, when arguing against the prosecution’s case that Najib is guilty due to his alleged misuse of his powers in all those three roles.

"This is an overkill that destroyed their own case, using a sledgehammer to kill a fly,” he said, referring to the saying of using too much force to achieve something.

All four charges had accused Najib of having used his position as a public officer, and had all listed his three positions then — prime minister, finance minister, and 1MDB’s board of advisers’ chairman.

Shafee also argued that the four power abuse charges are defective as the prosecution did not specify which company or what matters that Najib had a personal interest in.

Citing Section 23 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 that covers power abuse offences, Shafee said there are four elements of the crime that the prosecution would have to mention in a charge to avoid charges from becoming defective.

He said these four elements of a power abuse charge are:

1. the accused person has to be an officer of a public body,
2. who uses his office or position,
3. for any gratification,
4. whether for himself, his relative or his associate.

Under Section 23(2), a public officer will be presumed to have committed the power abuse offence, when he makes any decision or when he takes any action over a matter where he or his relative or associate has a direct interest or indirect interest in.

Shafee then went through each of the four power abuse charges, giving his own examples of the multiple possible personal interests that the prosecution could have alleged Najib to have.

For example, for the fourth power abuse charge, Shafee said there are 18 possible things that the prosecution could have said Najib has an interest in and made decisions or took actions over related matters, including having an interest in 1MDB and 1MDB subsidiaries.

But as the prosecution allegedly did not specify Najib’s personal interest in the four power abuse charges, Shafee argued that this would prevent his client from effectively defending himself in the 1MDB trial and has also prejudiced him.

"As Yang Arif can appreciate, this case has went on for five, six years. I dare say Yang Arif has not met a case where the cross-examination is this long.

"And this is the reason why, because the prosecution has not focused their attack, their charges on us. And if they don’t focus, we can’t focus on our cross, so if the prosecution meanders in their case, we follow their meander and we have to cross-examine along the way.

"And until today, we still don’t know what is the interest, after cross-examination, we still do not know, and that is a serious prejudicial issue,” he claimed.

The 1MDB trial before judge Datuk Collin Lawrence Sequerah continues tomorrow morning, with Shafee expected to continue presenting his arguments on why Najib should be acquitted.