Thursday 28 Mar 2024
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PUTRAJAYA (Aug 26): In a minor blow to the prosecution's 1Malaysia Development Bhd (1MDB) case, former premier Datuk Seri Najib Razak and senior lawyer Tan Sri Muhammad Shafee Abdullah were granted leave by the Court of Appeal today to possibly challenge the legality of the appointment of former Federal Court judge Datuk Gopal Sri Ram as a senior deputy public prosecutor.

The three-member bench led by Justice Datuk Hasnah Mohammed Hashim unanimously ruled there are merits in their appeal.

"The nature and jurisdiction in a judicial review regarding disqualification (of a lawyer) and reasoning on duplicity of applications are separate issues.

"The judicial review by them is not frivolous. We allow the appeal and decide tomorrow at 9am as case management before the deputy registrar for the High Court Appellate and Special Powers division," she said.

Sitting with Justice Hasnah were Justices Datuk Lau Bee Lan and Datuk Has Zanah Mehat.

In judicial review applications, leave or permission has to be obtained to ensure the application is not frivolous and vexatious and an abuse of the court process.

It was reported on Feb 20 this year that then-High Court judge Datuk Azizah Nawawi — who has now been elevated to the Court of Appeal — dismissed the judicial review application despite ruling there are grounds for the merits to be heard due to the duplicity of another application they filed at the criminal court that had then yet to be heard.

Deputy Public Prosecutor Ahmad Akram Gharib, who appeared with Attorney General (AG) Tommy Thomas and senior federal counsel Shamsul Bolhassan, told reporters today that Wednesday's 1MDB trial will go on as scheduled.

However, Shafee suggested that following today's decision, they should postpone the trial.

"If they (prosecution) are smart they should postpone the case on Wednesday, because an action by a non-qualified person may nullify the case.

"We do not want to be accused of delaying the trial again, as the ball is at their (prosecution's) feet. If the court agrees (to disqualify Sri Ram) kacaulah (disturb the prosecution). If they don't (postpone) they take the risk," the senior lawyer said.

Sri Ram is slated to prosecute Najib, as well as Shafee and possibly Najib's step-son Riza Aziz in 1MDB-related cases.

Najib's criminal application to disqualify Sri Ram
Beside the judicial review application filed by Najib and Shafee, which will now be heard on its full merits following today's appellate court decision, the former premier had also filed a separate criminal application to disqualify the former Federal Court judge from prosecuting them.

This application was dismissed by High Court trial judge Justice Collin Lawrence Sequerah, and the decision was upheld by the Court of Appeal.

On Aug 7, a seven-member Federal Court bench dismissed Najib's appeal to disqualify Sri Ram but ordered the prosecution to give to the court and the defence Sri Ram's appointment letter by Thomas dated Aug 31, last year.

The letter was previously classified under the Official Secrets Act 1972.

Going by how the apex court ruled earlier this month, it may not be a problem for Sri Ram to lead the prosecution on Wednesday, but the problem may start if the High Court hearing the judicial review decides against the appointment midway through the trial, and the other superior courts uphold its decision.

If Sri Ram was removed as lead prosecutor in Najib's 1MDB trial, this would nullify the entire proceedings, forcing the prosecution to start again in building their case.

Questions surrounding Sri Ram's appointment
Najib and Shafee's contention after getting the letter, according to Shafee and his co-counsel Harvinderjit Singh, was how Sri Ram was appointed under Section 376(3) of the Criminal Procedure Code by the AG, when it should have been under Section 377 and 379 of the Code.

Section 376(3) reads: "The Public Prosecutor may appoint fit and proper persons to be Deputy Public Prosecutors who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally and he may designate any of such Deputy Public Prosecutors as Senior Deputy Public Prosecutors."

Shafee and Harvinderjit argued that Sections 377 and 379 allow the appointment of an ad-hoc prosecutor and not a deputy public prosecutor as stipulated under Section 376.

"The appointment of Sri Ram is like him acting [as] Spiderman and Superman for the prosecution team. As the appointment letter [seen by us] suggests, he (Sri Ram) will oversee the 1MDB investigations where investigation papers [IPs] from the Malaysian Anti-Corruption Commission and the police would be given to him.

"Sri Ram is also given the power to frame the charges as stipulated in the letter. Not only is he the prosecutor but also the investigator as he received the IPs. This is despite Sri Ram [affirming otherwise] in an affidavit, despite the letter of appointment stating this," Shafee said.

Thomas, meanwhile, argued that the judicial review was doomed to fail due to the duplicity or multiplicity of the applications which have been decided by the criminal court and upheld by the Federal Court.

"Section 376 stipulates the AG can appoint anyone he wants to prosecute a person. This is the fifth time they tried to remove Sri Ram, the intention is directed at removing him from leading the prosecution.

"Due to the principle of res judicata and estoppel the appeal should have been dismissed," Thomas said.

Res judicata is defined as a matter that has been adjudicated by a competent court and hence, may not be pursued further, while estoppel is a court ruling against the party on the same matter in a different case.

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