PUTRAJAYA (Nov 15): The Court of Appeal on Monday (Nov 15) adjourned Datin Seri Rosmah Mansor’s appeal to recuse former Federal Court judge Datuk Seri Gopal Sri Ram from leading the prosecution in her corruption trial linked to the RM1.25 billion solar hybrid project to allow for full submissions on whether a criminal court has the jurisdiction to grant declarations sought by her.
Justice Datuk Hanipah Farikullah, who chaired the three-member bench, said the point of whether a criminal court has the jurisdiction to grant declarations is a critical issue as it may have implications on the merits of Rosmah’s appeal to recuse Sri Ram.
“This issue was never raised in the written submission and was only raised now. Since this issue has never been raised, the court will need assistance from both parties to file further submission.
“In our view, this issue is critical in the determination of the preliminary objection and it may also have an important implication on the merits of the appeal itself.
“Therefore, the prosecution has requested for an adjournment to file further submission on this point and the respondent (Rosmah’s lawyers) has no objection to the adjournment, of which the respondent also wishes to file written submission to address this issue,” she added.
Before arriving at the decision to adjourn the matter, Hanipah — who sat together with Justices Datuk M Gunalan and Datuk Hashim Hamzah — asked Rosmah's lawyers — led by Datuk Jagjit Singh and Datuk Akberdin Abdul Kader — whether they would concede to the prosecution's request.
Akberdin said they have no hesitation towards the adjournment, but pointed out that this issue was not raised at the High Court and was only brought up here in this preliminary objection.
Sri Ram submitted that a criminal court does not have the jurisdiction to grant the declarations sought by the defence — namely that Rosmah’s solar project graft trial is a nullity.
“In the High Court, the accused (Rosmah) has asked for a declaration. A criminal court has no jurisdiction to grant declaratory relief. Such applications can be made via judicial review,” he added.
Additionally, Sri Ram argued that the Court of Appeal also does not have the jurisdiction to hear the appeal because in a criminal case, the High Court ruling does not amount to “a decision” under Section 3 of the Courts of Judicature Act, which exhausts a party's rights in the trial.
“It is only through a conviction or an acquittal at the end of a full trial that a party is allowed to appeal.
“Any orders made in the course of the trial are not appealable. However, even if we are wrong and the court does have jurisdiction to hear this appeal, does [the court] still have the jurisdiction to grant declaratory relief,” he emphasised.
Justice Hanipah ordered counsels to meet with Court of Appeal registrars for case management to fix the next hearing date, which the court may fix to hear submissions either on Nov 30 or Dec 2, subject to the availability of the bench and all parties.
Previously, on Sept 24, the High Court had dismissed Rosmah’s application to remove Sri Ram from leading the prosecution, and in effect dismissed her application to nullify her corruption proceedings involving the RM1.25 billion solar hybrid project for 369 rural schools in Sarawak.
The Court of Appeal had on Oct 4, dismissed her application for a stay of proceedings pending her appeal over the High Court's Sept 24 decision which resulted in her taking the witness stand to testify in her defence.
Rosmah is facing a charge of soliciting RM187.5 million and two charges of receiving bribes totalling RM6.5 million from Jepak Holdings Sdn Bhd managing director Saidi Abang Samsudin through her former assistant Datuk Rizal Mansor as a reward for assisting the former secure the RM1.25 billion project to equip 369 schools in rural Sarawak with solar hybrid power.
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