Malaysia’s public prosecutors under fire after court discharges Najib in 1MDB-linked case

KUALA LUMPUR -- Malaysia’s public prosecutors have drawn flak from analysts and observers after former prime minister Najib Razak and former treasury chief Mohd Irwan Serigar Abdullah were on Nov 27 granted a discharge not amounting to an acquittal (DNAA) in a graft case linked to the 1Malaysia Development Berhad (1MDB) scandal.

The two had been charged in 2018 with six counts of criminal breach of trust involving RM6.6 billion (S$2 billion) in government funds paid to Abu Dhabi’s state fund International Petroleum Investment Company.

Justice Muhammad Jamil Hussin said that there was an extreme delay in the case, due to the prosecution’s failure to provide the defence with crucial documents.

He said that the DNAA was granted because the prosecution did not comply with Section 51A of the Criminal Procedure Code, which mandates that the prosecution must provide the accused with specific documents before the trial begins.

The court decision does not preclude the possibility of the same charges being filed again.

“The DNAA order does not prejudice the prosecution’s case. The prosecution could still re-charge them again,” said Justice Muhammad Jamil. 

Mr Halmie Azrie Abdul Halim, a senior analyst at political risk consultancy Vriens & Partners said the prosecution’s inability to provide the necessary documents reflects poorly on the Attorney General’s Chambers (AGC).

“It’s incompetence from the AGC’s side. Six years is more than enough to share relevant documents. If they couldn’t share the documents citing the Official Secrets Act (OSA) as the reason, then the prosecution should have withdrawn the case. Now the prosecution has to re-charge, if the AGC is still inclined to do so,” he said.

Deputy public prosecutor Muhammad Saifuddin Hashim Musaimi had told the court that there were about 40 documents which have yet to be declassified under the OSA, and that the prosecution had no control over this process.

At any rate, this does not reflect well on the prosecution if there are no credible public reasons given immediately, said Mr Jerald Joseph, director of non-governmental human rights organisation Pusat Komas.

While the prosecution might have its reasons for failing to provide the defence with crucial documents in a timely manner, the public deserves to know why, he added.

“Why did they fail the public this time? Any such perceived incompetency would raise suspicions of political interference,” Mr Jerald said.

Electoral reform group Bersih’s executive director Ooi Kok Hin expressed concerns about the erosion of public trust in the AGC’s independence in the wake of the latest court decision, saying that the mishandling of such as a high-profile case despite years of preparation must be properly explained.

“We (Bersih) call on the Attorney General to publicly explain the reasons for this fumble...This helps to prevent real and perceived executive interference in high-profile cases involving senior politicians,” he added.

The court decision, and the prosecutor’s failure to proceed with the case, has cast doubt on other criminal charges facing Najib, who is currently serving a 12-year prison sentence for a graft conviction involving RM42 million belonging to a 1MDB subsidiary, SRC International. That jail sentence, meted out in August 2022, was halved to six years by a Pardons Board chaired by Malaysia’s previous King, Sultan Abdullah Ahmad Shah, in January 2024.

In 2023, Najib was acquitted by the Kuala Lumpur High Court on charges of abusing his power by tampering with an audit report on the scandal-ridden state fund in 2016, due to the prosecution’s failure to meet deadlines to continue the appeal against the duo’s acquittal.

Najib, 71, faces several trials linked to 1MDB, from which Malaysian and US authorities say about US$4.5 billion (S$6.04 billion) was stolen in a complex, globe-spanning scheme between 2009 and 2014.

Another criminal trial is set to begin December 2, with Najib facing charges of receiving illicit funds worth RM2.28 billion from the coffers of 1MDB and 21 counts of money laundering involving the same monies.

He is also accused of laundering RM27 million belonging to SRC International, with that trial set to begin in April 2025.

Najib’s lawyer Muhammad Shafee Abdullah said on November 25 that the sheer volume of cases his client faces can be equated to “carpet bombing”, saying this had stretched the defence and Najib to the breaking point.

Meanwhile, Mr Halmie said that the High Court’s decision on the DNAA would enable Najib’s lawyers to claim that the charges are politically motivated efforts to discredit him and were deliberately designed to tarnish his reputation.

Universiti Malaya political sociopolitical analyst Awang Azman Awang Pawi said that high-profile DNAA decisions could influence political dynamics, especially if they involve key political figures like Najib.

“Such outcomes may affect public support for political parties and alter the political landscape,” he added.