This article has been updated to include the further arrest of Najib Razak and the 25 new charges brought against him.
The trial of Malaysia’s former prime minister, Najib Razak, is scheduled to start on February 12 next year.
Judge Mohd Nazlan Mohd Ghazali, sitting in the High Court in Kuala Lumpur, set the dates for the trial as February 12 to 28 and March 4 to 29.
The judge also rejected the defence application for a continued gag order on the publication of discussion of the merits of the charges faced by Najib. On Monday, the defence will file an appeal against his ruling.
A temporary gag order was imposed by the previous judge in the case, Mohamad Sofian Abdul Razak, at a hearing on July 4.
Justice Nazlan said the application for a further gag order was unsustainable and such a restriction would represent a major incursion into the constitutional right to freedom of speech and freedom of expression.
The judge said legal remedies were already available to deal with contempt of court and defamation, and the defence’s application “fell short of establishing the case for prior restraint”.
The defence’s request for a gag order was unjustified, the judge said, and such a gag on publication would be superfluous.
Najib faces seven charges: three of money laundering, three of alleged criminal breach of trust and one of alleged abuse of power. He has pleaded not guilty to all charges.
The charges centre on alleged corruption in relation to SRC International Sdn Bhd, a former subsidiary of the sovereign wealth fund 1Malaysia Development Berhad (1MDB).
In its investigations into allegations about 1MDB, the MACC has initially focused on the alleged siphoning of funds from SRC International to Najib’s account.
Najib faces allegations that 42 million Malaysian ringgit (about US$10.3 million) was transferred from SRC International to his personal bank account.
In his submissions to the court, Harvinderjit Singh had said the defence team was not seeking to restrain coffee shop talk or to prohibit fair and accurate reporting of the case.
He said the defence wanted a gag on the media speaking – outside of direct court reporting – about the merits of the charges or the guilt or innocence of the defendant.
The defence lawyers said they would take action not only against journalists breaking a gag order, but also members of the public making prejudicial comments on websites and social media.
Harvinderjit Singh said that if the foreign media broke the sub-judice rule, the defence lawyers would “go after them”. Just because someone was overseas, he said, “that doesn’t mean they are out of jurisdiction”.
Shafee (pictured left) urged the judge not to embark on the trial until adverse public opinion, which posed a “substantial risk” to his client, had “cooled down”.
He said that, if the trial were to be held while public opinion was so heated, his client would have to “walk into the fire” of that opinion.
Shafee said there had been immense pre-trial publicity suggesting that Najib was guilty of the offences with which he has been charged.
He said public sentiment was so prejudicial that nothing short of conviction on all charges would satisfy a portion of the public.
Members of the current administration, including the prime minister Mahathir Mohamad, finance minister Lim Guan Eng, and MP Tony Pua, had weighed in and supported “the call for blood”, he said.
Shafee cited an article written by the attorney-general Tommy Thomas and said that Thomas, who leads the prosecution team, had placed himself in a total conflict of interest. It was “unthinkable”, he said, that a prosecutor should write such articles.
He also cited numerous articles in the Sarawak Report, the Wall Street Journal, Malaysiakini, and other publications, which he said were aimed at influencing the public, and numerous anonymous comments that he said were “sinister” and “accommodated” by the outlet on whose website they were posted.
The editor of the Sarawak Report, Clare Rewcastle Brown, was in court this afternoon. She had been at the court complex in the morning to attend a different hearing.
She told Changing Times that her past reports cited by Shafee were written in the process of the ordinary job of journalism: bringing an issue to public attention.
“These were original stories that I was reporting before there were any charges,” she said. “It’s not me who is putting Najib on trial; it’s the authorities and the attorney-general’s office, as it should be.”
She said that since Najib had been charged she had been treating the case, “as any reporter would”, as now being sub judice.
She added that the defence threat to selectively go after members of the public who tweeted that they thought Najib was guilty was extraordinary. “It’s terrorising the public and trying to strike fear into people.”
Rewcastle Brown told reporters that she was sure the judge in the case would be able to do his job in the normal way without being influenced unduly by the media. “I’ve just reported factually on this case, as have others, and none of my reporting on this case appears to have been substantially disproved.”
Access to the Sarawak Report, which is based in Britain, was blocked in Malaysia by the Barisan Nasional government, but the ban was lifted by the new government that came into power after its surprise election win in May.
Shafee challenged the argument that judges are not influenced by media reports. There is a subconscious effect on trial judges, he said. Judges, he said, “are human beings”.
He added that witnesses who will appear in Najib’s trial may come to court “severely affected” by the statements that have been made condemning the former prime minister.
Defence lawyer Harvinderjit Singh said: “If we allow people to say whatever they want without having a little bit of guidance, the entire system will come into anarchy.”
He said the defence team was seeking to give “fair warning” to members of the public about what can and cannot be published.
Harvinderjit Singh said that if there were no limitations, there would be a slew of articles that would go into the evidence about SRC International.
Prosecutor Mohamad Hanafiah Zakaria said Shafee was requesting a gag order that was too wide. The class of person who would be affected would be too wide, he said. The type of material referred to would be impossible to restrain and the order would be impossible to enforce, he added.
He said the defence was naming people, but had made no attempt to pursue anyone for contempt of court in the case.
He pointed out that there was no jury system in Malaysia. “A professional, trained judge decides the case … based on the evidence produced in court.”
At the hearing on July 4, Tommy Thomas said the request for a gag order insulted the integrity and intelligence of professional judges who, he said, were not going to be influenced by what was published in the media.
Submissions about the gag order took most of the day in court today, with discussion about the trial dates coming at the end of the afternoon.
Supporters of Najib, led by actress Ellie Suriyati, shouted in protest outside the court buildings, complaining that they were not being allowed into the complex.
Najib’s supporters have not been permitted to enter the court building since a group of them rowdily disrupted a press conference that Tommy Thomas attempted to hold in the lobby on July 4.
Complaints about procedure
Shafee complained about the format in which he has been given one of the court documents, document 51a.
The document was given to the defence in the form of a CD and Shafee said his team spent one and a half days and the whole of the night printing out the 3,500 pages.
Najib was only given the document just before midnight last night, Shafee said. “I haven’t had a look at a single page,” he added.
The document still lacked an index, Shafee said.
“This is not the way to treat the defence. What we need is documents themselves in copies with the correct indexing.”
Prosecution lawyer Manoj Kurup said it made sense to place such voluminous documentation on a CD. “It’s there in a permanent form,” he said. It was not the responsibility of the defence, he said, to index each and every document.
Another case management hearing has been scheduled for October 4.
The money laundering charges against Najib have been brought under Section 4(1)(b) of the 2001 Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act.
The breach of trust charges have been brought under Section 409 of the Penal Code. They each carry a maximum sentence of twenty years in jail. They also carry the penalty of caning, but, except in cases of rape, men aged over fifty are exempt and Najib is aged 65.
The abuse of power charge comes under Section 23 of the 2009 Malaysian Anti-Corruption Commission (MACC) Act. It also carries a maximum sentence of twenty years and a fine of no less than five times the value of funds siphoned or 10,000 ringgit, whichever is higher.
The money laundering charges state that Najib received 42 million ringgit in his personal AmIslamic Bank Berhad account.
The money was allegedly siphoned from SRC International.
Najib’s government created SRC in 2011 to pursue overseas investments in energy resources. It was a subsidiary of 1MDB until it was transferred to the finance ministry in 2012.
The charges further state that the former prime minister performed the transactions via Real Time Electronic Transfer of Funds and Securities (RENTAS) between December 26, 2014, and February 10, 2015.
The charges carry punishments of imprisonment for a term not exceeding fifteen years and a fine of not less than five times the sum or value of the proceeds of an unlawful activity “or instrumentalities of an offence at the time the offence was committed”, or five million ringgit, whichever is the highest.
On the first charge, Najib is accused of receiving 27 million ringgit from unlawful activity via RENTAS into his personal AmIslamic Bank account on December 26, 2014.
On the second charge, the former prime minister is accused of receiving 5 million ringgit from unlawful activities via RENTAS in his AmIslamic Bank account, also on December 26, 2014.
The third charge states that Najib received 10 million ringgit from unlawful activities via RENTAS in his AmIslamic Bank account on February 10, 2015.
It is also alleged that between December 24 and December 29, 2014, at the AmIslamic Bank Bhd, Najib committed a breach of trust involving a sum of 27 million ringgit. Then prime minister and finance minister, Najib had a mandate to manage four billion ringgit in funds belonging to SRC International.
He is alleged, over the same period, to have committed a second breach of trust involving five million ringgit. It is also alleged that, from February 10 to March 2, 2015, he committed a third breach of trust involving 10 million ringgit.
In the abuse of power charge, it is alleged that, between August 17, 2011, and February 8, 2012, Najib abused his position to receive a 42 million ringgit bribe as an inducement to provide a government guarantee for a four billion ringgit loan from the Kumpulan Wang Persaraan pension fund to SRC International.
Najib was at that time of all the alleged offences prime minister and minister of finance.
Allegations of corruption and money laundering linked to 1MDB, which was founded by Najib in 2009, are being investigated in at least six countries, including Singapore, Switzerland, and the United States.
In civil lawsuits filed by the US Department of Justice, it is alleged that, between 2009 and 2015, more than $4.5 billion in the 1MDB fund was misappropriated by high-level officials of the fund and their associates.
Najib faces allegations that he channelled more than 2.6 billion ringgit (about US$642 million) from 1MDB into his personal bank accounts. He denies any financial wrongdoing in relation to 1MDB.
On June 27, the director of the federal commercial crime investigation department, Amar Singh, said the total value of items seized in recent raids on premises linked to Najib was estimated at between 900 million and 1.1 billion ringgit.
Najib Razak now faces 25 new charges: four relating to alleged abuse of power and 21 relating to alleged money laundering. This brings the total number of charges he faces to 32. He has pleaded not guilty to all charges.
Najib is accused of using his position as prime minister, finance minister, and chairman of 1MDB to obtain nearly 2.3 billion ringgit (about US$556.23 million) in illegal transfers to his own accounts between 2011 and 2014.
He is also accused of using and transferring illicit funds linked to 1MDB.
His bail has now been set at 3.5 million ringgit (about USS$846,000).
The Malaysian Anti-Corruption Commission (MACC) arrested Najib, who is now the MP for Pekan, yesterday afternoon and he appeared in court today (Thursday) in Kuala Lumpur.