The Federal Court made a “fundamental error” when it enforced that Datuk Hisyam Teh Poh Teik to remain on board as Datuk Seri Najib Razak’s lead counsel despite the lawyer wanting to discharge himself due to time constraints, says Tan Sri Muhammad Shafee Abdullah.
He said Hisyam – who represented Najib at the final appeal in the SRC International Sdn Bhd case – was “compelled to remain in court” as though he was representing Najib despite voicing his intention to discharge himself.
This enforced obligation should not have happened, said Shafee.
He was making his submissions in Najib’s review application in the SRC International case on Monday.
During the final appeal last August, Hisyam had sought for an adjournment of the proceedings for three to four months as he had only taken over the matter several weeks earlier.
The five-judge panel, chaired by Chief Justice Tengku Maimun Tuan Mat, however, gave a stern ‘no’ to the request.
Hisyam then refused to make any submission on Najib’s behalf up until the Federal Court’s decision that affirmed and upheld Najib’s conviction and sentence.
“The counsel (Hisyam) said it’s not the fault of his client (Najib) but it is his fault because he had misjudged the timing (between taking over the matter and the hearing dates). So why punish my client?” Muhammad Shafee said.
“This goes against every rubric of law and jurisdiction of the court,” Shafee added.
According to Shafee, Hisyam, who was still present during the final appeal proceedings, was in no effect representing Najib as the appellant.
“Hisyam’s representation (of Najib) was decorative at best, illusionary and that is not sanctioned by law, and that is reviewable because that goes against the very root of fair trial,” Shafee said.
The review application hearing is before a five-judge panel chaired by Chief Judge of Sabah and Sarawak Justice Abdul Rahman Sebli.
Other judges were Federal Court judges Justices Vernon Ong Lam Kiat, Rhodzariah Bujang, Nordin Hassan and Court of Appeal judge Justice Abu Bakar Jais.
Najib is seeking to review the Federal Court’s decision of Aug 23, 2022, which upholds the Kuala Lumpur High Court’s decision to convict and sentence him to 12 years in jail and a RM210 million fine in the RM42 million SRC International case.
Shafee also claimed the apex court ‘rushed’ Najib’s SRC appeal last year.
He said this was seen in the previous apex panel not allowing an application to adjourn the appeal hearing for between three and four months.
Shafee claimed that the previous bench had erred in not allowing an application by Najib’s then-legal team for a three to four-month adjournment of the appeal hearing.
“Why was the court in a hurry? I know sometimes counsel irritates the court when asking for adjournment and the court is an expert in dealing with such matters, but it is a matter that the court needed to deal with and that is not by denying adjournment but via other ways, to comply with the rules of natural justice,” Shafee said.
The lead defence counsel then began submitting an allegation that Najib entertained the notion that he did not get justice from the SRC appeal as the 15th general election (GE15) was just around the corner.
The then apex court bench dismissed Najib’s SRC appeal on Aug 23 last year, while the Malaysian Parliament was dissolved a few months later on Oct 10, followed by GE15 on Nov 19.
However, this line of GE15-linked oral submissions led to an objection raised by deputy public prosecutor (DPP) V Sithambaram.
The DPP told the bench that counsel must not speak “from the Bar” and to just stick to the points contained in the written submissions filed earlier with the apex court.
Shafee then countered that the defence team is not saying the apex court last year “went through a dishonest process”, adding that his client could not be blamed for entertaining the perception.
Shafee then informed the present bench to take judicial notice of the issue.
The hearing of the SRC review application resumes tomorrow and is expected to continue on Wednesday this week.
The hearing continues on Tuesday (Feb 21).