Photo by Shahrin Yahya/The Edge

PUTRAJAYA (May 29): A three-member Federal Court bench on Wednesday has dismissed former prime minister Datuk Seri Najib Razak’s leave to appeal against a Kuala Lumpur High Court decision in November 2022 to not allow him to attend a Mareva injunction hearing of US$681 million by 1Malaysia Development Bhd (1MDB).

The bench, led by Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, unanimously made that ruling, and the judge said they are not persuaded by Najib’s counsel Tan Sri Muhammad Shafee Abdullah’s submissions to seek leave.

“The bench is of the view that this application does not pass the threshold of Section 96 of the Courts of Judicature Act as the matter (Mareva injunction hearing) is academic and has been determined.

“We dismiss the application and order the appellant (Najib) to pay RM30,000 costs,” said Abdul Rahman, who sat with Federal Court judges Datuk Rhodzhariah Bujang and Datuk Hanipah Farikullah.

Shafee had posed three questions of law basically touching on Najib’s rights under Article 5 over the liberty of a person to have the right to a fair trial.

The senior counsel said the 1MDB civil proceedings over the Mareva injunction on Najib has a criminal impact on the former prime minister as he is also facing trial on the matter.

Hence, Shafee said Najib’s right to attend the hearing despite being in prison was needed so that the former PM can give instructions with regard to 1MDB’s application.

“The impact of the injunction is far reaching and wide as it involves all of Najib’s assets and funds in Malaysia and worldwide. The applicant (Najib) is and was facing several criminal and civil proceedings in relation to the same set of assets and funds,” he added.

Shafee also said that Najib’s presence should be allowed in the hearing in terms of the freezing order.

The counsel further contrasted this Mareva injunction with an ongoing SRC International Sdn Bhd civil suit where another High Court judge had allowed Najib’s presence in the proceedings despite being in prison.

Najib is presently serving his 12-year jail sentence and RM210 million fine, which have been halved to six years in jail and a RM50 million fine following a pardon.

This followed the Federal Court on Aug 23, 2022, upholding Najib's conviction and sentence that were handed down by the High Court on July 28, 2020, after finding the former prime minister guilty of the criminal breach of trust, money laundering and abuse of power charges in the SRC case.

A review of the Federal Court decision was also dismissed by a majority decision of a different Federal Court in March last year.

Najib's appeal doomed for failure

1MDB’s counsel Siva Kumar Kanagasabai countered Najib's leave to appeal by saying it was doomed for failure as the Mareva injunction hearing had concluded and was already decided by the High Court.

Siva Kumar noted the High Court judge had not decided on whether to bar Najib from future hearings.

“This Mareva injunction application and hearing is based on affidavits and written submissions by parties. There is not a need for his presence in court as this is an interlocutory matter.

“As the Mareva injunction has already been decided, this application for leave to appeal is rendered academic,” he said, adding that when Najib was not in prison, the former PM had not made any attempt to attend the 1MDB civil proceedings.

On Nov 24 last year, the Court of Appeal also dismissed Najib’s appeal against the High Court’s decision to bar his attendance in the Mareva injunction proceedings as it was deemed academic.

Court of Appeal judge Datuk P Ravinthran said the bench considered Najib’s application was only confined to the hearing of the Mareva injunction at the High Court.

“The bench agrees with the counsel for 1MDB (Siva Kumar) that the matter has already been decided by the High Court and whatever decision made here would be rendered academic.

“In respect to the pending appeal [for this Mareva injunction], nothing here precludes Najib from making an application to attend the hearing or any matter in future application at the Court of Appeal. Hence, we dismiss Najib’s appeal,” Ravinthran said.

The Mareva injunction was granted by High Court judge Atan Mustaffa Yussof Ahmad on Sept 27 last year, after he upheld the inter-partes Mareva injunction imposed on Najib to freeze US$681 million of his purported assets, having granted the ex-parte injunction on Feb 8, 2022, against the former prime minister.