KUALA LUMPUR: Datuk Seri Najib Razak's defence was left shaking its head in disbelief after hearing that the former Prime Minister's co-accused, Arul Kanda Kandasamy, will be called to testify against him in the 1Malaysia Development Bhd (1MDB) audit tampering trial.
Najib's lead counsel, Tan Sri Muhammad Shafee Abdullah, was taken aback after hearing this at the onset of the trial today and said he was "shocked and appalled" by the latest development.
"We were caught by surprise they are going to invoke this section of the law.
"Of course, we are going to fight it... it is manifestly against the constitution," he told the New Straits Times during a break of proceedings.
Earlier, he also informed High Court judge Mohamed Zaini Mazlan that the defence plans to raise the issue of constitutionality after hearing deputy public prosecutor Datuk Seri Gopal Sri Ram's opening statement.
Sri Ram revealed that the prosecution plans to invoke Section 63 of the Malaysian Anti-Corruption Commission (MACC) Act and get Arul Kanda, 43, to testify on the prosecution's behalf.
"Arul Kanda abetted Najib in this transaction. I am duty bound to inform the court that at the appropriate stage, the prosecution will apply in writing under Section 63 of the MACC Act 2009, to call Arul Kanda to give evidence on the prosecution's behalf.
"We will be addressing the court on this part of the case at the appropriate stage," the former Federal Court judge, who is leading the prosecution team, said.
His statement also caught Arul Kanda's lawyers by surprise and his lead counsel, Datuk N Sivananthan, immediately stood up to say so.
"The opening statement is a surprise to me... that my client will be called as a witness," he said.
Sivananthan later said Section 63 is "rarely if ever used", but he views it as a positive development for his client.
"They are asking my client to assist their case as opposed to being the culprit.
"The charge sheet is also clear that the only person who allegedly benefitted was Najib... my client is only accused of aiding and abetting, he did not benefit from this," he said.
Sivananthan, however, added that he would only agree to the prosecution's bid to call Arul Kanda to testify if there is an understanding that the charges against his client will be dropped, in line with what is stated in Section 63.
Section 63 states that whenever two or more persons are charged with an offence, the court may – on an application in writing by the public prosecutor – require one or more of them to give evidence as a witness for the prosecution.
It further states that if the court finds that the witness has given a true and full discovery of all things, he shall be entitled to receive a certificate of indemnity barring all legal proceedings against him.
Najib, 66, is accused of ordering the 1MDB audit report to be tampered with before it was presented to the Public Accounts Committee (PAC) in 2016.
He is charged with using his office or position for gratification, an offence under Section 23 of the MACC Act 2009.
He faces up to 20 years in jail and a fine if convicted.
Arul Kanda is charged with abetting Najib and faces the same penalties if convicted.
The trial started today with three initial witnesses called to the stand. The first to take the stand was Dam Huri Nor, who is the administrative secretary for constitutional matters and Parliament under the Prime Minister's Department.
He confirmed that Najib had indeed been appointed as Prime Minister from 2009 to 2018 and was therefore a civil servant – the capacity in which he is charged for the audit tampering offence.
The others who testified today were Natasha Rahimah Haryati Mohamad, an accountant in the Prime Minister's Office; and Muhamad Akmaludin Abdullah, an assistant registrar with the Companies Commission of Malaysia.