PUTRAJAYA (Aug 27): Former premier Datuk Seri Najib Razak and senior lawyer Tan Sri Muhammad Shafee Abdullah were granted leave by the Court of Appeal yesterday to possibly challenge the legality of former Federal Court judge Datuk Seri Gopal Sri Ram’s appointment as a senior deputy public prosecutor (DPP).
While this would not stop Sri Ram from serving as lead prosecutor in Najib’s 1Malaysia Development Bhd (1MDB) court case tomorrow, if he is removed as the lead prosecutor in the middle of the trial it would nullify the entire proceedings, forcing the prosecution to start again in building their case. The three-member bench, led by Justice Datuk Hasnah Mohammed Hashim, unanimously ruled that there were 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 (today) 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.
It was reported on Feb 20 this year that then High Court judge Datuk Azizah Nawawi — already 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 in the criminal court that had then yet to be heard.
DPP Ahmad Akram Gharib, appearing with Attorney-General (AG) Tommy Thomas and senior federal counsel Shamsul Bolhassan, told reporters yesterday that tomorrow’s 1MDB trial will proceed as scheduled.
However, Muhammad Shafee suggested that following yesterday’s decision, they should postpone the trial.
“If they (the prosecution) are smart, they should postpone the case [that is set] 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 (the 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.
The former Federal Court judge is slated to prosecute Najib, as well as Muhammad Shafee and possibly Najib’s stepson Riza Aziz in 1MDB-related cases.
Najib filed criminal application to disqualify Sri Ram
Besides the judicial review application which will now be heard on its full merits following the appellate court’s decision, the former premier had also filed separate criminal applications to disquality Sri Ram from prosecuting them.
This application was dismissed by High Court 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 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 tomorrow, but the problem may start if the High Court hearing the judicial review decides against the appointment midway through the trial, and the superior courts uphold its decision.
Questions surrounding Sri Ram’s appointment
Najib and Muhammad Shafee’s contention after getting the letter was how Sri Ram was appointed under Section 376 (3) of the Criminal Procedure Code (CPC) by the AG, when it should have been under Sections 377 and 379 of the CPC.
Muhammad Shafee and defence counsel Harvinderjit Singh argued that Sections 377 and 379 allow the appointment of an ad hoc prosecutor and not a DPP as stipulated under Section 376, as Sri Ram is a private lawyer and not a public servant.
“As the appointment letter [seen by us] suggests, he 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,” Muhammad Shafee said.
Thomas, meanwhile, argued that the judicial review was set to fail due to the duplicity or multiplicity of the applications 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 [had] 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,” he said.
Res judicata is defined as a matter adjudicated by a competent court, and hence may not be pursued further. Estoppel is a court ruling against the party on the same matter in a different case.
This article first appeared in The Edge Financial Daily, on Aug 27, 2019.