Saturday, January 22, 2022

The SRC verdict revisited as clock ticks in Najib’s second last countdown

This is the former prime minister's second last chance before exhausting the legal process to avoid a jail sentence that would set him free at the age of 80.

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Former prime minister Najib Razak may be staring at 12 years in jail if the Court of Appeal upholds his conviction for charges related to the misappropriation of millions of ringgit linked to SRC International.

Najib’s defence team is challenging the verdict handed down last year by High Court judge Mohd Nazlan Mohd Ghazali, who explained the basis of the conviction in an elaborate 800-page judgment.

Najib, the most senior Malaysian politician to ever be convicted of criminal charges, was found guilty of seven counts of abuse of power, criminal breach of trust (CBT) and money laundering.

His actual sentence is 72 years’ imprisonment, 10 years for each of the six charges related to CBT and money laundering, and 12 years for abuse of power for which he was also fined RM210 million or five times the amount in question. But judge Nazlan used his discretion to order for the sentences to run concurrently.

At the heart of the case is RM42 million in two of Najib’s personal bank accounts, money that was part of a total of RM4 billion loaned to SRC – the 1MDB subsidiary of which he was the adviser – from the government’s pension fund Retirement Fund Inc (KWAP).

Najib argued that he had no knowledge of the huge transactions made into his personal accounts between 2014 and 2015, claiming he was a victim of runaway businessman Low Taek Jho, and even invoking the name of Saudi Arabia’s King Abdullah.

His claim that he thought the amount was part of a personal donation to him by the late Saudi monarch was ripped apart by judge Nazlan.

Nazlan said it was “too preposterous” for Najib as the prime minister and finance minister to claim ignorance of the funds in his own accounts, adding that “yet he had no qualms of spending on the said sum during the same period”.

On his blaming of Low, or Jho Low, the court said the latter had only carried out the task required by Najib “with unmatched distinction”.

“The accused, despite claims of being scammed, agreed that he did not lose any money. Instead he benefitted immensely by the remittances of huge sums of monies into his accounts,” according to the judgment.

The four letters

Najib’s defence team has tendered four letters from a certain “Saudi royalty”, purportedly showing that a huge donation would be made to him.

But the judge said the story of the letters was “an elaborate but weak fabrication”, giving “10 problems” with the documents which the prosecution suggested were forged and an afterthought.

Among the “problems”, said the judge, was that one of the letters pledging a large sum of money for Najib was signed by one “Prince Saud”.

The judge questioned how Najib, who admitted to not knowing this person, never took steps to make any verification of the letter writer’s claim.

The judge also found holes in Najib’s claim, asking why he had not even mentioned a thanks to King Abdullah in two of his letters to the Saudi monarch for the alleged donation.

“The accused’s defence that he honestly believed that the funds remitted into his accounts were donations from King Abdullah is nothing but an implausible concoction.”

Najib’s private designs

The court agreed that SRC was created as a vehicle to divert public funds into Najib’s pocket.

As the judgment said, it was part of Najib’s “private designs… to use SRC for his personal advantage”.

In cases of CBT such as this, there are several key issues to determine the basis of finding an accused guilty.

In Najib’s case, they include the extent of his control over SRC, from which the money was diverted into his accounts, and whether he had criminal intention in the offence.

The court was satisfied that Najib not only had the final say in SRC, but also full control of its activities, which included putting down his signature in accepting the loan from KWAP to SRC.

In addition, as the finance minister whose ministry owned 1MDB, Najib was the person to appoint the chairman, CEO and directors of SRC, and open SRC bank accounts.

With these powers, he also registered an SRC subsidiary in the British Virgin Islands, as well as opened bank accounts in Hong Kong and Dubai with more than RM2 billion in deposits.

Najib, the court said, was the person entrenched with decision-making powers, and no evidence was found of directors questioning him.

“The accused had overarching control of the company through its power of hire and fire over the directors (as the prime minister), its directions to the directors through the various shareholder minutes (as the finance minister), and its advice on strategic and important matters which must be sought by the directors.”

The court was further satisfied with regard to criminal intention, as Najib had signed the cheques to transfer funds from SRC to his own bank accounts, as he had himself admitted.

In CBT cases of this nature, Najib’s argument that he signed the transfers thinking they were for charity purposes could not exonerate him as the purpose of spending after a misappropriation is not relevant.

Will he go to jail?

Should Najib lose his appeal which is presided over by three judges, the former prime minister has one final chance in the Federal Court, where seven judges will decide on his case.

As the final appeal with the Federal Court should be filed within four months of the Court of Appeal decision, Najib has until April 2022 to know whether he will end up behind bars or remain a free man.

If the former takes place, he will be 80 before he can walk out of prison unless he receives a royal pardon as was the case with PKR leader Anwar Ibrahim, when he was released from jail in 2018 before completing a sentence for sodomy.

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