FORMER prime minister Najib Razak cannot be prosecuted with abuse of power due to legal provisions that provide immunity to a public officer acting in the interest of a public body, lawyer Muhammad Shafee Abdullah told the court today.

Najib’s lead defence counsel submitted to the High Court in Kuala Lumpur that his client was a public officer, who represented the interests of SRC International, which was fully-owned by the government.

“He represents a government entity. If he is in that representative capacity, as prime minister, minister of finance and emeritus adviser, he is immune from prosecution,” Shafee said during submissions before Justice Mohd Nazlan Mohd Ghazali.

Shafee said Section 23 (4) of the MACC Act states that: This section shall not apply to an officer who holds office in a public body as a representative of another public body, which has the control or partial control over the first-mentioned public body in respect of any matter or thing done in his capacity as such representative for the interest or advantage of that other public body.

Najib faces one power abuse charge under Section 23 of the Malaysian Anti-Corruption Commission (MACC) Act 2009.

The 66-year-old also faces three criminal breach of trust (CBT) charges read under Section 409 of the Penal Code, and a further three money laundering charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA) 2001.

Najib’s charges are linked to RM4 billion in loans issued to SRC International in 2011 and 2012, of which he is accused of receiving RM42 million in his personal accounts in 2014 and 2015.

Shafee told the court this afternoon that if the CBT and MACC charges could not be proven by the prosecution beyond reasonable doubt, then Najib’s defence cannot be called.

He said that this was because offences under Section 409 of the Penal Code and Section 23 of the MACC Act could not happen at the same time as AMLA as they are predicate offences.

“You can’t do it because AMLA is only triggered by these four charges,” said the lawyer.

Predicate offences are a component of more serious offences.

Shafee argued against the prosecution’s allegation that Najib had planned to siphon the RM42 million three years in advance.

“It’s less than 1% of the KWAP (Retirement Fund Inc) loan (of RM4 billion). Why RM42 million, why that amount?”

The lawyer also commented on the use of the word “drama” by the prosecution on Najib’s alleged shock reaction on discovering RM42 million in his accounts.

“When Najib was informed, witnesses testified that he was visibly shocked. Witnesses never said it was ‘drama’. They said it was genuine shock.”

Judge Mohd Nazlan will decide on November 11 whether Najib should enter his defence.

Najib is represented by a dozen lawyers led by Shafee, while Attorney-General Tommy Thomas is leading the prosecution. – October 23, 2019.