KUALA LUMPUR: The status of Tan Sri Dr Muhammad Shafee Abdullah as lead counsel in former prime minister Datuk Seri Najib Razak’s money-laundering case is now being questioned as the lawyer is now facing similar criminal charges.
Those in the legal fraternity said the issue that had to be addressed was possible conflict of interest between both parties concerned.
Shafee, who is facing four charges under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, questioned the charges levelled against him yesterday, saying that, among others, the probe was incomplete and that the Malaysian Anti-Corruption Commission (MACC) was supposed to call Najib for questioning over the contentious RM9.5 million payment to Shafee that landed him at the Sessions Court in Jalan Duta yesterday.
Shafee said his charges did not affect his position as the lead counsel for Najib’s criminal breach of trust and abuse of power cases.
He claimed to have heard a rumour that he was to be jointly charged with Najib in the RM9.5 million case, in an attempt to prevent him from defending Najib and himself in “the joint trial”.
“However, we will make sure that it will not work (the joint-trial) because we have our own strategy, if it ever comes to that,” he said, when met after posting bail at the court complex.
Shafee, who pleaded not guilty to all the charges, was quoted in the past as saying that the RM9.5 million Najib paid him was not for being the lead prosecutor in the “Sodomy II” appeals, but for “unpaid work” done for Barisan Nasional and Umno in relation to 46 election petitions.
Yesterday, he told the press that he had “only asked for RM9.5 million (when it could have been RM20 million)” because he “needed quick money to purchase a property to help a friend”, adding that Najib had agreed to pay him in two transactions, in advance payment or loan, until he rationalised the legal billing.
That (the bill) was “not crystallised yet”, was also the reason Shafee said he could not declare his income tax that he was cited for.
The payments were said to be from Najib’s AmIslamic Bank Bhd account.
Najib, who issued a statement later, maintained the payment was for services Shafee rendered to his party.
“The charges against my lead lawyer for receiving payments from my party for services rendered is yet another way of denying me a fair trial. It can be seen as an attempt to intimidate or disqualify him and other lawyers from representing me in my case,” he said.
Former Malaysian Bar president Zainur Zakaria said Shafee must decide whether or not to continue representing his client, even if he is innocent until proven guilty.
“He might be called in as a witness in Najib’s case (or vice versa),” Zainur said.
Another former president of the council, Ragunath Kesavan, shared Zainur’s view that there could be a conflict of interest of witnesses where Shafee and Najib’s cases were concerned.
“However, practising lawyers (facing charges) can represent their clients while on trial as they are innocent until proven guilty and have a valid practising certificate,” he said, adding that the suspension of a lawyer’s practicing certificate must be decided upon following disciplinary proceedings by the Malaysian Bar Council.
Legal expert Professor Datuk Salleh Buang said lawyers on trial could continue their services if the Bar Council allowed it.
Professor Emeritus Datuk Dr Shad Saleem Faruqi said there were no specific guidelines that could force Shafee to be removed as Najib’s counsel.
“Even lawyers are innocent until proven guilty,” he said.
Najib, in his argument that Shafee’s day in court was an attempt to intimidate or disqualify the latter and other lawyers from representing him, said the monies were fees for services rendered by the lawyer’s firm to Umno “over many cases over the years, including for election petition cases in GE12 and GE13...”
“A lawyer works for fees and he or she is entitled to payment for their services... Charging Tan Sri Shafee for receiving payments for legal services rendered sets a very dangerous legal precedent for all lawyers, professionals and businesses.
“No one will be safe if the government chooses to victimise or to politically persecute you.”
Two of the charges Shafee faces are for allegedly making false declarations to the Inland Revenue Board (IRB), for not including the RM9.5 million in his tax filing for the year.
Shafee is alleged to have committed acts contrary to Section 113(1)(a) of the Income Tax Act, 1967, by omitting the income he received on Sept 13, 2013, totalling RM4.3 million, and on Feb 17, 2014, totalling RM5.2 million.
He was accused of committing the offences at the IRB office in Jalan Tuanku Abdul Halim here on March 3, 2015, and June 29, 2015.
In the first and second counts, Shafee is alleged to have been involved in money laundering activities by receiving proceeds of unlawful activities via two cheques from Najib, totalling RM4.3 million and RM5.2 million respectively, on Sept 13, 2013, and Feb 17, 2014.
The offences were allegedly committed at the CIMB Bank Bhd in Taman Tunku, Bukit Tunku, here.
Deputy public prosecutor Ahmad Akram Gharib offered RM2.5 million bail to be imposed on Shafee but the judge, Azura Alwi, allowed a RM1 million bail with two sureties, and ordered Shafee to surrender both his passports to the court until the disposal of the case (Shafee has a diplomatic passport).
On his diplomatic passport, Shafee explained that he obtained it when he was the ambassador-at-large, of which the passport was valid.
“However, I received a letter from Wisma Putra last month that I should not use it any more as I am no longer one (ambassador-at-large).”
Azura also allowed Shafee’s lawyers’ application for half of the bail amount to be paid yesterday, and the rest by Sept 18.
If convicted under Section 4(1) of the Act, Shafee faces a maximum jail sentence of 15 years for the false declaration charges, and five years for receiving the RM9.5 million.
He also faces a maximum fine of RM5 million, or five times the money received.
Shafee’s case will be up for mention on Oct 2.
The lawyer was detained by MACC early yesterday morning before he was brought to the court here at 11am, escorted by 10 MACC officers.
Before he heard the charges levelled against him, Shafee told reporters that they were an act of “victimisation”.
Deputy public prosecutor Datuk Seri Gopal Sri Ram led the prosecution team, while Shafee was represented by counsels Harvinderjit Singh, Chetan Jethwani, Datuk Hasnal Rezua Merican, Rahmat Hazlan and Muhammad Farhan Muhammad Shafee, his son.
The New Straits Times learnt that the MACC had been probing the matter from last year.
The charges slapped against Shafee stemmed from claims in an affidavit filed in the Court of Appeal, suggesting that he had received the sum from Najib when he was appointed to lead the Sodomy II prosecution team against PKR de facto leader Datuk Seri Anwar Ibrahim.
Anwar had, last June, said he had been denied a fair trial following allegations by whistleblower site the Sarawak Report that RM9.5 million was transferred to Shafee from Najib’s private account.
The PKR leader said the Court of Appeal’s decision on March 7, 2014, to convict him of sodomising Mohd Saiful Bukhari Azlan was made in an unconstitutional manner.
The appeals court’s decision was upheld by the Federal Court on Feb 10, 2015.
The government had given Shafee a temporary licence to be made ad-hoc prosecutor to conduct the appeal, which led the court to set aside Anwar’s acquittal by the High Court in 2012.
In an affidavit filed in the Court of Appeal and released recently, Siti Rahayu Mohd Mumazaini, an officer from the Attorney-General’s Chambers, affirmed that Shafee had received RM9.5 million from Najib to lead the Sodomy II prosecution.
She had said the information was obtained by MACC after the issuance of an order obtained to freeze Shafee’s CIMB Bank account. Additional reporting by Rahmat Khairulrijal