This article first appeared in The Edge Financial Daily on October 15, 2019

KUALA LUMPUR: The Federal Court in Putrajaya is expected to decide today whether appointed senior Deputy Public Prosecutor (DPP) Datuk Seri Gopal Sri Ram, the Attorney-General’s Chambers (AGC) and government can appeal against the appellate court’s decision that granted leave to Datuk Seri Najib Razak and lawyer Tan Sri Muhammad Shafee Abdullah to challenge the appointment of Sri Ram as a prosecutor in the case.

This follows five questions of law that had been posed by the AGC and the government over the Court of Appeal’s decision on Aug 26 that allow Najib and Muhammad Shafee — who are each facing trials of their own in relation to 1Malaysia Development Bhd (1MDB) — to challenge Sri Ram’s appointment to conduct the trials.

The 1MDB-Tanore trial involving Najib is already entering its 22nd day today, as it began on Aug 28 with Sri Ram, a former Federal Court judge, leading the prosecution team, which comprises 12 other DPPs.

The hearing of Najib and Muhammad Shafee’s merits, which has been fixed by the High Court for Oct 25, will only go on if the AGC and government lose the appeal.

The five questions of law posed before the apex court as sighted by The Edge Financial Daily are:

i) Whether an accused in a criminal trial, having unsuccessfully applied to the trial judge for an order to disqualify Sri Ram from leading the prosecution against the accused, and whose appeals thereafter to the Court of Appeal and Federal Court failed, is entitled to apply for a similar order to disqualify the senior DPP simultaneously in civil proceedings;

ii) Whether in such circumstances, the accused has any right to apply for a judicial review to secure a similar or substantially similar order to disqualify the DPP;

iii) Whether the doctrines of res judicata (judged matter) and issue estoppel, in any event preclude the accused from filing a second application which, if granted, would have the effect of disqualifying the DPP;

iv) Whether the accused by filing a second application which, if granted, would have the effect of disqualifying the DPP, is thereby acting in abuse of process and consequently barred from so applying; and

v) Whether the test laid down in the Court of Appeal of England in R (Grace) vs Secretary of State for the Home Department that judicial review cases which are “totally without merit” or “doomed or bound to fail” should not be given leave to proceed to its merits should be accepted as good law in Malaysia for hopeless cases, like the instant judicial review application.

If leave is granted, then the apex court would fix a hearing date to hear the merits of the appeal based on the questions posed above, which may be refined by the court.

It was previously reported that Najib had sought to remove Sri Ram from leading the prosecution, the application which trial Justice Collin Lawrence Sequerah dismissed.

The application had been upheld by the Court of Appeal and the Federal Court but the apex court ordered the appointment letter be shown to the defence.

At the same time, Najib and Muhammad Shafee filed a judicial review application aiming to remove Sri Ram.

It was dismissed by then High Court Justice Datuk Azizah Nawawi (who is now with the Court of Appeal) on the grounds it amounted to duplicity of action, but on Aug 26, a three-member bench led by Justice Datuk Hasnah Mohamed Hashim allowed the appeal.

Hence the present appeal by the AGC and the government along with Sri Ram.