KUALA LUMPUR (Aug 28): Datuk Seri Gopal Sri Ram can continue to prosecute Datuk Seri Najib Razak and Tan Sri Muhammad Shafee Abdullah in 1Malaysia Development Bhd-related trials.
This is because High Court Justice Datuk Seri Mariana Yahya has today dismissed Najib's application to challenge the appointment of Sri Ram as lead prosecutor in his 1MDB case. Also dismissed was a similar application from Shafee that challenged Sri Ram's appointment as prosecutor in his money laundering trial that has yet to commence.
In dismissing their applications, Justice Mariana also ordered the duo to pay RM10,000 as costs.
Immediately after the decision was made, Shafee, who also appeared as counsel for Najib, said he had instructions to appeal today's decision and wanted a copy of the judgment immediately, to which the judge said it would be ready by Tuesday.
In reading out her 45-page judgment, Justice Mariana, who took one and a half hours to deliberate on the issue, said the appointment of the former Federal Court judge as senior Deputy Public Prosecutor by then Attorney-General Tan Sri Tommy Thomas was valid.
“The court must not interfere unless we find that the A-G had misdirected himself in law or that his decision does not follow the statute.
“There is no evidence that the A-G had misdirected himself in law. Hence, the court rules there should not be annullity in Sri Ram's appointment. The application is dismissed with costs,” Mariana said.
In arriving at her decision, she also contrasted Sri Ram's appointment with Shafee's appointment made in the Datuk Seri Anwar Ibrahim Sodomy II case, which was done on the same provisions under Section 376(3) of the Criminal Procedure Code and said the appeallate court had found Shafee's appointment in that case, as legal. Hence, similarly, she said Sri Ram's appointment under that same law is legal.
The judge also ruled that Thomas had found Sri Ram to be a fit and proper person to handle both cases, and had appointed him as lead prosecutor based on his discretion as the A-G.
“The A-G had made careful consideration in appointing Sri Ram to spearhead the prosecution, based on his experience (as the former Federal Court). The A-G found Sri Ram to be a fit and proper person to lead the 1MDB prosecution,” she said.
On arguments made by Najib and Shafee in submitting the affidavit of Thomas' predecessor Tan Sri Mohamed Apandi Ali to show purported bias on Sri Ram, Justice Mariana ruled that the duo's argument of political prosecution was without basis.
“I agree with the respondent (the A-G and government) that this issue (of purported bias) should be argued there (at the criminal court) and not challenged here (in the judicial review application). The litigants raised it already there, and this argument here is a re-agitation of this issue and constitutes an abuse of the court process,” she added.
“Such allegations remain allegations until the deponent (Apandi) is called to testify in court,” the judge said.
Najib and Shafee filed separate judicial review applications and named the A-G or Public Prosecutor, the Malaysian government, and Sri Ram as respondents in challenging the former senior judge's appointment in leading the prosecution in their trials.
It was previously reported that Apandi claimed Sri Ram had met him in early 2018 before the 14th general election, urging Apandi, who was then A-G, to arrest and charge Najib for the financial scandal at 1MDB. Najib and Shafee claimed this constituted a clear bias Sri Ram had against Najib.
Prior to this, Najib and Shafee had also made separate applications to challenge Sri Ram's appointment at the criminal court, but this was rejected by the High Court, Court of Appeal, as well as the Federal Court.
The duo's judicial review applications to challenge Sri Ram's appointment, which were heard today, were initially dismissed by Justice Datuk Azizah Nawawi (who is now a Court of Appeal judge). But the Court of Appeal allowed the matter to be remitted back to the High Court, and the apex court upheld this decision, which resulted in the matter being heard before Justice Mariana.
Besides the ongoing 1MDB trial, Najib is also challenging the former senior judge's appointment as lead prosecutor in his 1MDB audit tampering case.
Najib's wife Datin Seri Rosmah Mansor also filed a similar challenge to remove Sri Ram in her own graft trial involving a solar project. This was dismissed by High Court judge Justice Mohamad Zaini Mazlan last week.
Edited by Tan Choe Choe