The Malaysian Insight

THE legal team representing Arul Kanda Kandasamy told the Kuala Lumpur High Court today it is reserving its right to postpone its cross-examination of prosecution witnesses until after the former 1MDB CEO is called to the stand.

The prosecution is expected to call Arul as its witness in the trial where Najib Razak is accused of tampering with the 1MDB audit report in 2016.  

“As far as I am concerned, they are calling my client as a prosecution witness,” Arul’s lead counsel N. Sivanathan informed Justice Mohamed Zaini Mazlan after trial today. 

“We therefore, would like to reserve all cross-examination of all prosecution witnesses until he is called.”

What makes the case unprecedented is that Arul, who is also jointly tried for abetting the former prime minister, will be called to give evidence for the prosecution along with 17 other witnesses.

Senior deputy public prosecutor Gopal Sri Ram told the court in November that it was Attorney-General Tommy Thomas who made the application under Section 63 of the Malaysian Anti-Corruption Commission Act.

Speaking to reporters today, Sivanathan said he wants to preserve his clients rights to cross-examine the prosecution witnesses.

“I don’t want to put Arul in a compromising position by taking any stand on his behalf when he is giving evidence as a prosecution witness.

“However, at any point in time when they decide not to call Arul as a prosecution witness, I will recall witnesses to be cross-examined.

“But as it stands, the prosecution maintains they are calling him as their witness. So, at this juncture, I will not cross-examine any witnesses.”

Sivanathan maintains this is the first time Section 63 has been used in a criminal case.

The section reads: “Whenever two or more persons are charged with an offence under this act, the court may, on an application in writing by the public prosecutor, require one or more of them to give evidence as a witness or witnesses for the prosecution.”

It further reads that any person who refuses to be sworn or to be affirmed to answer any lawful question shall be dealt with in the same manner as witnesses so refusing may by law be dealt with by the court.

The 1MDB audit tampering trial may result in the prosecution withdrawing charges against Arul, Sivanathan said in November, adding that his client cannot be compelled to give testimony that would incriminate himself.

Najib’s lead counsel Muhammad Shafee Abdullah, who was not present today due to health issues, has previously said that he would challenge the constitutionality of the matter. 

Najib is accused of using his position to remove parts of the final 1MDB audit report between February 22 and 26, 2016 at the Prime Minister’s Department before it was tabled to the Public Accounts Committee (PAC) to protect himself from criminal action.

The 66-year-old is accused of using his position as prime minister to obtain gratification in the form of disciplinary, civil and criminal immunity related to 1MDB by ordering amendments to the audit report before the final copy was presented to PAC. – January 14, 2020.