PUTRAJAYA (Jan 19): Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli has dismissed the preliminary objection made by Datuk Seri Najib Razak’s counsel Tan Sri Muhammad Shafee Abdullah to Court of Appeal judge Datuk Abu Bakar Jais being the fifth member of the apex court bench to hear the former prime minister's review on his conviction, 12-year imprisonment and RM210 million fine over SRC International Sdn Bhd.
Abdul Rahman, who led the five-member bench, ruled that Chief Justice (CJ) Tun Tengku Maimun Tuan Mat is empowered under Article 122(2) of the Federal Constitution to have an appellate court judge hear the review.
“Hence, the preliminary objection is dismissed,” Abdul Rahman said.
Abu Bakar remains on the bench in hearing the review with the other four judges.
With this, the hearing of Najib’s review commenced with Shafee making submissions.
Earlier, Shafee sought a full bench of Federal Court judges to hear Najib’s review and not have a member of the Court of Appeal bench to sit as the fifth judge on the bench.
He argued that Abu Bakar should not be on the bench to hear the preliminary objection.
The senior lawyer said there is a concern as Abu Bakar, being a Court of Appeal judge and being appointed by the CJ to hear the review, may not make an objective decision.
“The bench for the review should comprise of all Federal Court judges so that they could sit and decide whether the decision made by the previous panel chaired by Tengku Maimun was correct or not.
“It should be her peers who are on the bench,” he added.
Shafee said there are three other Federal Court judges who could replace Abu Bakar.
Ad hoc prosecutor Datuk V Sithambaram said Article 122(2) of the Federal Constitution stipulated that a judge of the Court of Appeal other than the President of the Court of Appeal may sit as judge of the Federal Court where the CJ considers that the interests of justice so require, and the judge shall be nominated for the purpose (as occasion requires) by the CJ.
Sithambaram said this is stipulated in the constitution itself and he wants the bench led by Abdul Rahman to decide on this issue first and hear the review proper.
Shafee countered that the phrase "in the interests of justice" in Article 122(2) is pivotal as the CJ should not be making the decision to empanel the matter.
He added that he had written to the Federal Court deputy registrar on Dec 14, stipulating this, but there has been no reply.
He added the interest of justice should be paramount, as this is a case involving an individual who was the former prime minister, and the defence is seeking the review as part of the reason they are challenging the decision that was made by the Tengku Maimun-led bench on Aug 23.
The other members of the apex court bench hearing the appeal are Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzhariah Bujang, and newly elevated Federal Court judge Datuk Nordin Hassan.
The other Federal Court judges who could have heard the review are Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, and Datuk Harmindar Singh Dhaliwal. However, some of them may be part of another apex court bench which are also sitting on Thursday.
A five-member bench led by Tengku Maimun had upheld Najib’s conviction and sentence and as a result, the former Pekan MP is serving his 12-year jail term and RM210 million fine.