KUALA LUMPUR (May 17): Former attorney general Tan Sri Tommy Thomas said Datuk Seri Gopal Sri Ram was appointed a senior deputy public prosecutor (DPP) in 2018 under Thomas' general control and direction as stipulated by law to lead in several high profile criminal cases, including Datin Seri Rosmah Mansor's corruption trial.
Thomas said Sri Ram, a former Federal Court judge, enjoyed all powers of the public prosecutor as his appointment was made under Section 376(3) of the Criminal Procedure Code.
"Since Sri Ram was under my general control and direction, and was in a position to exercise all the powers of the public prosecutor, I personally authorised him to conduct other prosecutions as well," Thomas said in an affidavit sighted by The Edge.
The affidavit was filed by Thomas to dismiss an application by Rosmah's legal team to declare her trial a nullity on the grounds that Sri Ram's appointment as lead prosecutor in the trial was "illegal, irregular and defective".
Thomas noted in the affidavit that Rosmah's husband, Datuk Seri Najib Razak, had also challenged Sri Ram's appointment at all levels, including the Federal Court, and failed. Najib is facing 25 charges of corruption and money laundering in the alleged transfers of 1Malaysia Development Bhd (1MDB) funds into his accounts.
"On Aug 8, 2018, as public prosecutor, I appointed Datuk Seri Gopal Sri Ram as Senior DPP under Section 376(3) to handle prosecutions relating to what has come to be known as the 1MDB scandals.
"The appointment was challenged by Datuk Seri Najib Razak. However, the challenge failed at all levels, including the Federal Court. The relevant orders of court that upheld the appointment will be produced under the affidavit of another deponent as I no longer have access to these," the former attorney general added.
Thomas said he had asked Sri Ram to prosecute the cases, and that no letter was necessary for his appointment.
"Accordingly, the contention that when I directed Datuk Seri Gopal Sri Ram to lead the criminal proceedings in this case, I had to give him another letter in writing akin to the requirement under Section 379 is a legal fallacy," he said.
Rosmah's lawyers contended that Sri Ram's appointment through a fiat (letter) cannot take effect retrospectively as it prejudices on the rights of the applicant (Rosmah) guaranteed under law. They said the letter cannot be used for the prosecution over Rosmah's case as Sri Ram was only appointed a senior DPP for cases involving 1MDB.
Thomas in his affidavit argued that if Sri Ram did not have authority to work on these cases, the team of public prosecutors permanently employed at the Attorney General's Chambers (AGC) would not accept his leadership.
"If Datuk Seri Gopal Sri Ram did not have my authority, which was confirmed by my successor, would the team of public prosecutors permanently employed at the AGC accept and work under his leadership on behalf of the prosecution?" he asked.
Thomas said Sri Ram could not appear in the trials without the sanction of a public prosecutor and that he was appointed as a matter of fact and law.
"In other words, it defies credibility and belief that Datuk Seri Gopal Sri Ram could appear during the trial of this much publicised case without the sanction of the public prosecutor. As counsel he cannot hold himself out unless he was properly appointed by the public prosecutor, which he was, both as a matter of fact and law," he said.
"It defies belief and credibility for the applicant to question or challenge the appointment of Datuk Seri Gopal Sri Ram as lead counsel in (Rosmah's) prosecution, having regard to the latter's appearance in court from the first mention, and throughout the trial, which is still pending."
According to the notice of motion, the defence asked for Sri Ram to be barred from being part of the prosecution in any capacity in Rosmah's corruption trial.
The defence also requested that the trial be temporarily disposed of, according to the document.
Rosmah is facing three corruption charges related to the RM1.25 billion solar-hybrid project for 369 rural schools in Sarawak. She is charged with soliciting, through her aide Datuk Rizal Mansor, a RM187.5 million bribe from Jepak Holdings Sdn Bhd managing director Saidi Abang Samsudin in exchange for her assistance in ensuring the award of the government project to Jepak.
She is also facing two charges of receiving from Saidi a total of RM6.5 million — RM5 million and RM1.5 million — at her official residence in Seri Perdana, Putrajaya, and also her private residence in Jalan Langgak Duta, between Dec 20, 2016 and Sept 7, 2017.
Justice Mohamed Zaini Mazlan on Feb 18 ordered Rosmah to enter her defence after finding a prima facie case against her and fixed nine days beginning June 9 to hear her defence.
Apart from the solar-hybrid trial, Rosmah is also facing a second trial, in which she is charged with 17 counts of money laundering and tax evasion involving RM7.09 million. Hearing of this case will begin in November 2021.