KUALA LUMPUR- The High Court hearing Datuk Seri Najib Tun Razak’s case for alleged tampering with the 1Malaysia Development Berhad (1MDB) final audit report was told today that the prosecution should prove that the former prime minister had in some way misused his office to obtain gratification to fulfill the element of misuse of office.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah submitted that the prosecution must show that the former prime minister had the necessary authority over the Auditor General (AG), who prepared and finalised the Audit Report for 1MDB, or that the Auditor General was pressured or threatened in arriving to any decision in relation to the Audit Report prepared by him.
“At the outset, we submit that the AG acted under the powers vested to him by Article 106 of the Federal Constitution as well as the Section 7 of the Audit Act 1957, which explicitly provides that the AG performs his functions under the Federal Constitution.
“Based on the testimony by the former AG, Tan Sri Ambrin Buang, National Audit Department (NAD) former director Saadatul Nafisah Bashir Ahmad and NAD officer Datuk Nor Salwani Muhammad, it is clear that Tan Sri Ambrin had exercised his own prerogative power as the AG in effecting the amendments before the final 1MDB audit report was tabled to the PAC (Public Accounts Committee).
“We also submit that Tan Sri Ambrin had exercised his powers independently from any purported instruction from the Prime Minister and Minister of Finance,” he said adding that the charge against Najib was oppressive.
Muhammad Shafee, who was submitting on Najib’s bid to strike out the charge, which he is facing with former 1MDB chief executive officer Arul Kanda Kandasamy, said that the misuse of the phrase ‘muktamad’ at the beginning of the charge and ‘dimuktamadkan semula’ at the latter part of the amended charge against his client carried the effect of “misleading and confusing the defence”.
The defence, therefore, submitted that even on the reading of the charge itself, there was no clear direction on how something that was already final and yet finalised again, he said.
“For the above reasons, we pray that this honourable court invokes its inherent jurisdiction to quash and/or strike out the charge against my client and ordered for Datuk Seri Najib to be acquitted and discharged forthwith.
“In the alternative, we pray for an order of discharge not amounting to acquittal on the grounds that the charge put forth against Datuk Seri Najib is groundless,” he added.
Former Federal Court judge Datuk Seri Gopal Sri Ram, who is leading the prosecution team, argued that Najib’s bid to strike out the charge should be dismissed as the prosecution was still at the preliminary stage of presenting evidence before the court.
He said, it was too early for the court to conclude that the charge was an abuse of process.
Sri Ram said, so far only seven prosecution witnesses had testified and the prosecution had yet to call other witnesses and produce evidence to show the alleged gratification committed by the former prime minister.
“Najib must prove that the prosecution’s actions against him through the charge against him is very oppressive,” he added.
The presiding judge, Mohamed Zaini Mazlan then fixed Aug 7 to deliver his decision.
Najib, 67, is charged with using his position to order amendments to the 1MDB final audit report before it was finalised and presented before the PAC to avoid any action being taken against him, while Arul Kanda is charged with abetting Najib in making amendments to the report to protect Najib from being subjected to action.
Both were charged under provisions of the Malaysian Anti-Corruption Commission Act 2009, which carry a maximum jail term of 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.