A seven-member panel chaired by Chief Justice Tan Sri Richard Malanjum also rejected the 66-year-old former prime minister's appeal regarding the procedure taken by the Attorney-General to have his case transferred from the Sessions Court to the High Court for trial.
Meanwhile, the panel allowed the prosecution's appeal to overturn the appellate court's ruling that requiring it (the prosecution) to produce the appointment letter of ad hoc prosecutor Datuk Sulaiman Abdullah to the defence.
The other judges were Chief Judge of Malaya Tan Sri Zaharah Ibrahim, Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah, Federal Court judges Tan Sri Ramly Ali, Datuk Tengku Maimun Tuan Mat, Tan Sri Idrus Harun and Datuk Nallini Pathmanathan.
In delivering the court's decision on Najib's appeal for additional documents, Justice Idrus said Parliament has passed Section 51 of the Criminal Procedure Code (CPC) to regulate what were the documents to be supplied to the defence before trial and this had been complied by the prosecution.
He said Najib was not entitled to any further documents at this stage, adding that should his (Najib's) demand be allowed, it would be tantamount to the entire investigation papers to be delivered to him.
On the prosecution's appeal over Sulaiman's appointment letter, Justice Wong said the public prosecutor has the power to appoint a private practitioner to conduct criminal prosecution on his behalf.
He said there is no difference whatsoever in conceptual terms in the appointment of Sulaiman by the public prosecutor with that of an appointment of a counsel by a private entity to act on its behalf.
He said the defence did not have the legitimate expectation to sight the letter.
"Unless there is a challenge to the validity to the appointment of the counsel, there exists no duty on the appointing authority or private entity to produce the letter of appointment," he said.
He said the client-solicitor privileged communication under Section 126 of the Evidence Act and that the busy body argument raised by the AG had merits.
Justice Wong said the court saw no error on the part of the High Court judge's action in exercising his powers under section 417 (2) of the Criminal Procedure Code in transferring the cases to him.
"He (the High Court judge) had exercised his discretion judicially and hence there is no question of illegality as contended by the appellant (Najib)," he said.
"The purport of withdrawal of the certificates in this case was more on the public prosecutor taking proactive steps in preserving the status quo of the proceedings, precluding any future constitutional challenge of the provisions that form the basis of the proceeding itself in light of the recent Federal Court decisions in Semenyih Jaya and Indira Gandhi,"he said.
in Semenyih Jaya, which involved land matters, the Federal Court held that the judicial power of the federation still vests with the judiciary, despite the amendment to Article 121(1) in 1988.
Basically, the apex court held that constitutional amendments which disturb the basic structure of the Federal Constitution would themselves be unconstitutional.
In the Indira Ghandi case , in a landmark decision, the Federal Court ruled that unilateral conversions of minors to Islam are unlawful.
Justice Wong said the High Court judge decided on his own motion to transfer the cases to the same High Court instead of going to the new case registration route as it appeared to him that such an order was expedient.
Justice Malanjum, meanwhile, delivered the court's decision on Najib's appeal for a gag order. He held that the order was not necessary as Malaysia had abolished jury trial and Najib's case was heard by a single judge who is the trier of facts and law.
He said the trial judge's ruling is also subject to review on appeal.
Even if the gag order was refused, the appellant still has the recourse to law on defamation and contempt,” he said, adding that Najib could still sue for defamation or initiate contempt of court proceedings.
The Court of Appeal in March this year had dismissed Najib's three appeals prompting him to appeal to the Federal Court.
Najib is facing three counts of criminal breach of trust, one charge of abusing his position and three counts of money laundering over SRC International funds, amounting to RM42 million.
His trial commenced on April 3 and the prosecution had called one witness to testify on that day. The trial will resume from April 15 until May 10.