KUALA LUMPUR (Oct 14): The Federal Court in Putrajaya is expected to decide tomorrow whether appointed senior Deputy Public Prosecutor (DPP) Datuk Seri Gopal Sri Ram (pictured), the Attorney General's Chambers (AGC) and the government can appeal against the appellate court's decision that granted leave to Datuk Seri Najib Razak and lawyer Tan Sri Muhammad Shafee Abdullah to challenge the appointment of Sri Ram as a prosecutor in the case.
This follows five questions of law that had been posed by the AGC and the government over the Court of Appeal's decision on Aug 26 that allow Najib and Shafee — who are each facing trials of their own in respect to 1Malaysia Development Bhd (1MDB) cases — to challenge Sri Ram's appointment to conduct the trials.
The 1MDB-Tanore trial involving Najib is already entering its 21st day today, as it began on Aug 28 with Sri Ram, a former Federal Court judge, leading the prosecution team, which comprises 12 other deputy public prosecutors.
The hearing of Najib and Shafee's merits, which have been fixed by the High Court on Oct 25, will only go on if the AGC and government lose the appeal tomorrow.
The five questions of law posed before the apex court as sighted by theedgemarkets.com are:
1 whether an accused in a criminal trial, having unsuccessfully applied to the trial judge for an order to disqualify Sri Ram from leading the prosecution against the accused, and whose appeals thereafter to the Court of Appeal and Federal Court failed, is entitled to apply for a similar order to disqualify the senior DPP simultaneously in civil proceedings
2 whether in such circumstances, the accused has any right to apply for judicial review to secure a similar or substantially similar order to disqualify the DPP
3 whether the doctrines of res judicate and issue estoppel, in any event preclude the accused from filing a second application which, if granted, would have the effect of disqualifying the DPP
4 whether the accused by filing a second application which, if granted, would have the effect of disqualifying the DPP, is thereby acting in abuse of process and consequently barred from so applying, and
5 whether the test laid down at the Court of Appeal of England in R (Grace) vs Secretary of State for the Home Department that judicial review cases which are "totally without merit" or "doomed or bound to fail" should not be given leave to proceed to its merits should be accepted as good law in Malaysia for hopeless cases, like the instant judicial review application;
If leave is granted, then the apex court would fix a hearing date to hear the merits of the appeal based on the questions posed above, which may be refined by the court.
It was previously reported that Najib had sought to remove Sri Ram from leading the prosecution, the application of which trial judge Collin Lawrence Sequerah dismissed.
The application had been upheld by the Court of Appeal and the Federal Court but the apex court ordered the appointment letter be shown to the defence.
At the same time, Najib and Shafee had filed a judicial review application aiming to remove Sri Ram.
It was dismissed by then High Court judge Datuk Azizah Nawawi (who is now with the Court of Appeal) on the grounds it amounts to duplicity of action, but on Aug 26, a three-member bench led by Justice Datuk Hasnah Mohamed Hashim allowed the appeal.
Hence the present appeal by the AGC and the government along with Sri Ram.
Najib, the former premier, is facing four counts of abuse of power and 21 counts of money laundering involving RM2.28 billion of 1MDB funds.
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