QC not well-versed with local laws and has no experience with the Malaysian legal system.
Tan Sri Muhammad Shafee Abdullah is “more equipped” than London-based lawyer Jonathan Laidlaw to represent former prime minister Datuk Seri Najib Razak in the latter’s final appeal against his conviction and sentencing to imprisonment and RM210 million fine in the SRC International Sdn Bhd case, the prosecution has said.
In an affidavit filed today at the High Court in Kuala Lumpur by deputy public prosecutor Mohd Ashrof Adrin Kamarul on behalf of the prosecution, it objected to the bid by the Queen’s Counsel from London on Najib’s instructions to seek to be the lead defence lawyer for Najib in the SRC appeal.
In the affidavit, Ashrof said that the issues in Najib’s SRC case are not difficult or complex issues, and disagreed that Laidlaw had the relevant special qualification or experience relevant to the SRC appeal that Malaysian lawyers would not already have.
Ashrof pointed out that Laidlaw does not have experience in conducting criminal trials or criminal appeals under the Malaysian laws — which Najib was charged and convicted under — in Malaysian courts, and that this UK-based lawyer is not well-versed with local laws involved in the SRC appeal at the Federal Court and has no experience with the Malaysian legal system.
“The applicant’s experience in conducting cases outside Malaysia does not provide the applicant with the special qualification or experience required to conduct these appeals under domestic laws,” Ashrof argued, referring to Laidlaw as the applicant.
Ashrof said that Laidlaw had failed to meet the requirements under Section 18(1) of the Legal Profession Act to be allowed to practise in Malaysia in order to defend Najib in the latter’s final appeal over the misappropriation of more than RM42 million of SRC funds.
Ashrof pointed out that there are local lawyers who have the special expertise — which Laidlaw claimed to have — who would be able to defend Najib, including Najib’s own Malaysian lead defence lawyer Shafee over the last three years since the trial begun at the High Court.
“It is indeed strange for the applicant to contend that there are no local lawyers to defend the said charges faced by the appellant when Tan Sri Dato Sri Dr Muhammad Shafee Abdullah himself and his team defended the appellant at the High Court to the Federal Court,” he said.
“It is thus an irony to say that there are no local lawyers with special qualification or experience when compared to the applicant to defend these charges when the applicant himself has no experience in arguing these charges before the Malaysian courts,” he added.
Arguing that Laidlaw does not have knowledge that is superior to that of local lawyers, Ashrof went on to highlight Shafee’s expertise in similar local criminal cases: “It is hard to fathom, how the applicant being a stranger to domestic law is more equipped and qualified than senior local criminal lawyers, including Tan Sri Dato Sri Dr Muhammad Shafee Abdullah, who regularly appears before all tiers of the Malaysian courts to argue similar cases as the said charges.”
Ashrof said it was difficult to accept the idea that there is no one lawyer at all out of the 21,625 lawyers in Malaysia who has the special qualification or experience to appear in Najib’s SRC appeal except Laidlaw, ultimately arguing that Laidlaw had failed to show that he has such special qualifications or experience not available among local lawyers.
To support its objection against Laidlaw’s application, the prosecution had also said there are multiple Malaysian lawyers, including Shafee, who had regularly represented clients on the similar offences of criminal breach of trust, power of abuse, and money laundering — which Najib is accused of in the SRC case — and provided a list of 168 such decided cases at all stages from the Magistrates Court to the Federal Court.
Laidlaw had filed an application on May 31 at the High Court in Kuala Lumpur to be admitted under Section 18(1) to practise in Malaysia as Najib wanted to hire him for the final SRC appeal at the Federal Court, claiming to “possess special qualifications, experience and expertise which is not available” among lawyers in Malaysia.
Under Section 18(1), the High Court may admit a person – who would have been eligible to be admitted as a lawyer in Malaysia if he was a Malaysian citizen or permanent resident – to practise as a lawyer here, for the purpose of any one case and if certain conditions are fulfilled.
The conditions required to be fulfilled under Section 18(1) are if this person has – in the court’s opinion – special qualifications or experience not available among lawyers in Malaysia for the purpose of that particular case, and also if he has been instructed by a lawyer in Malaysia to act for that case.
Ashrof also pointed out that Laidlaw does not have the Bahasa Malaysia qualification as required under Section 11(2) of the Legal Profession Act to succeed in his application under Section 18(2) to be able to represent Najib.
Under Section 11(2), no qualified person shall be admitted as a lawyer in Malaysia even if they have fulfilled other necessary requirements, unless they have passed or are exempted from the Bahasa Malaysia qualifying examination. Ashrof also argued that Laidlaw is not a qualified person under the Legal Profession Act to be able to be admitted as a lawyer in Malaysia.
As for Laidlaw’s application to be admitted on an ad hoc basis to be a practising lawyer in Malaysia just to represent Najib in the latter’s final SRC appeal, Ashrof said the last time that Malaysian courts had allowed or approved such ad hoc admission for criminal cases was more than 50 years ago in 1971, where the same lawyer who represented who represented the accused at the trial stage was allowed to represent the accused at the appeal stage.
Ashrof pointed out that if Najib’s political standing is ignored for this appeal, then this case would be “just another criminal appeal which does not deserve any special consideration for the admission of any foreign lawyer” to present arguments in Najib’s defence at the upcoming SRC appeal at the Federal Court.
Pointing out that the charges in the SRC appeal at the Federal Court are not new charges but the same charges Shafee handled for Najib at the High Court and Court of Appeal, Ashrof said the fact that Shafee had conducted the trial and the appeal previously clearly showed that he has the “special qualification and experience” required for the final appeal.
Arguing that Laidlaw’s application is without merit, Ashrof sought for the High Court to reject the UK lawyer’s application to be admitted here as a lawyer to be Najib’s lead defence counsel in the SRC appeal.
Laidlaw’s application is scheduled for case management before High Court judge Datuk Wan Ahmad Farid Wan Salleh on June 16.
The Federal Court is scheduled to hear Najib’s SRC appeal over a period of 10 days from August 15 to August 19, and from August 22 to August 26.
This SRC appeal at the Federal Court will be the last appeal that Najib can pursue, since his conviction was at the High Court in July 2020 and his previous appeal at the Court of Appeal was unanimously dismissed by a three-judge panel on December 8, 2021.
Najib on December 8, 2021 filed an appeal to the Federal Court, and this is the appeal that the highest court in Malaysia is scheduled to hear in August.
Ahead of this final appeal hearing in August, Najib had also on June 7 applied to the Federal Court to add on purported further evidence that he claimed to have discovered recently, and is seeking for his entire trial for the SRC case in the High Court to be declared null and void and for a retrial. – MMO