KUALA LUMPUR, July 22 — The High Court today rejected requests from former prime minister Datuk Seri Najib Razak and former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah to be granted discharge not amounting to acquittal (DNAA) or to be temporarily freed from all six charges in a trial involving RM6.6 billion of government funds.
High Court judge Datuk Muhammad Jamil Hussin said the trial which had been scheduled to finally begin this morning cannot be continued.
The judge noted that the prosecution has yet to deliver all documents to the defence to enable Najib’s and Mohd Irwan Serigar’s lawyers to give their defence statements to the prosecution before trial begins.
But the judge also rejected Najib’s and Mohd Irwan Serigar’s DNAA requests and ordered the trial to begin on November 14 without any further delays.
“The defence’s application for the first accused and second accused for DNAA is rejected,” the judge said.
“Parties are asked to be ready, the case will be continued on that date. No more delays,” he said.
The judge said the next three months from August to October would be sufficient for the prosecution to deliver all documents to the defence to enable the defence statement to be given to the prosecution before the trial starts in November.
Under Section 62 of the Malaysian Anti-Corruption Act 2009, after the prosecution has delivered documents to the defence, the accused person is to deliver a defence statement to the prosecution before the trial begins.
This is the second time that Najib and Irwan Serigar had applied for DNAA in this case. The High Court had on March 3, 2022 rejected their first DNAA attempt.
This morning, Mohd Irwan Serigar’s lead defence lawyer Datuk K. Kumaraendran applied for his client to be granted a DNAA.
He said the six charges have been hanging over his client’s head for the last six years, and as the prosecution has yet to hand over the full set of documents required for the defence’s preparation for the trial.
“What bothers me is in 2020 they said they were ready to go on with the matter, no steps were taken to declassify those documents in the last two years, and they are giving me documents in bits and pieces. Is that being fair to my client?
“And the documents they are going to serve, I have to sit with my client and go through. I’m asking for DNAA, when they are prepared with all the necessary documents, my client is ready to face the charges, if and when they are ready,” he said.
Earlier, Kumaraendran said the defence had on June 7 written to the prosecution to ask for 345 documents referred to in the prosecution’s witness statements and documents in Irwan Serigar’s caution statement, and on June 10 further requested for 70 other documents. While the prosecution later served 145 and 59 of those requested documents, the defence had on June 18 again asked for the remaining documents from the prosecution.
Kumaraendran said the prosecution will be serving seven bundles of documents today — after a failed attempt at 5.45pm last Friday, and that there are two more bundles of documents yet to be declassified which would be important to prepare for Irwan Serigar’s defence, and over 100 additional documents (including those yet to be declassified) would also be given to the defence team.
“Yang Arif, without those documents, if the prosecution insists on going on with the case, my client would not have a fair trial. Because I would not be in a position to prepare my defence,” he said.
Najib’s lawyer Muhammad Farhan Muhammad Shafee also applied for DNAA for his client, saying it was most appropriate to do so and to let the prosecution get their documents in order “and if they wish to continue the charges, we will deal with them”.
Muhammad Farhan said this is because the Official Secrets Act’s Section 2C only gives the relevant ministry the power to declassify documents and does not give the Attorney General’s Chambers the power to declassify, and said the reality is that the prosecution does not have control over when the documents can be declassified.
He also said the documents requested by Irwan Serigar are equally relevant to Najib’s defence against the charges of criminal breach of trust in this case, and it involves documents such as internal memos of the Finance Ministry and the Treasury.
While confirming that an attempt was made by the prosecution to serve some documents at around 6pm last Friday, he said there was no one around to accept those documents and he would also not have had any time to visit Najib to go through the documents as multiple visits to the Kajang prison would be required due to prison standard operating procedures and time limits.
The prosecution objected to the DNAA applications by Najib and Mohd Irwan Serigar.
Deputy prosecution head II Muhammad Saifuddin Hashim Musaimi said the prosecution had already written to the relevant ministries and government departments to request for declassification of the documents.
He said the Ministry of Energy Transition and Water Transformation (Petra) and the Ministry of Economy had provided a written response to the prosecution regarding the 10 and 29 documents that the defence wanted to be declassified, while the Land Public Transport Agency (Apad) — which was formerly known as the Land Public Transport Commission (Spad) — had replied in an email that it did not have the two requested documents, while the Cabinet division has yet to provide any written reply about the nine documents requested.
He also said the prosecution could still proceed with the trial and call in formal witnesses whose testimonies do not require the documents which the defence lawyers are seeking.
Kumaraendran said it would be unfair for the prosecution to ask for the trial to continue at this stage without the full documents given to the defence, as he also has to show the documents to his client for him to give instructions on the defence.
Muhammad Farhan said the defence lawyers cannot finalise its defence strategy and complete preparations to start the trial without looking at all the documents which will be used in the case.
He said that all three government bodies or agencies’ written replies to the prosecution do not give any timeline on when the documents will be declassified and that the Cabinet division has yet to state its position regarding important Cabinet discussions which the defence wants to be declassified.
He also argued that the witnesses which the prosecution considers to be just formal witnesses could turn out to be very important witnesses for the defence, again arguing against the trial starting now: “Instead of having these charges lingering over the two accused’s head and also in Yang Arif’s court, the best approach is to have a DNAA to allow the entire process to take place. There’s quite a meticulous process which needs to be done then afterwards the prosecution can make a decision as to whether there needs to be charges or not.”
After hearing all the arguments made, the judge decided to reject the DNAA bid.
In October 2018, Najib and Irwan Serigar pled not guilty to six charges of CBT amounting to RM6.6 billion in government funds, involving payments to International Petroleum Investment Company (IPIC) that were also said to be linked to 1Malaysia Development Berhad (1MDB).
Najib and Mohd Irwan Serigar were jointly accused of committing all the offences at the Finance Ministry Complex, Putrajaya between December 21, 2016, and December 18, 2017.
They were charged under Section 409 of the Penal Code read together with Section 34 of the same code which provides for a maximum of 20 years in jail and whipping as well as fine upon conviction.
