Lawyers representing former Umno Batu Kawan division vice-chief Khairuddin Abu Hassan today applied for Court of Appeal judge Justice Idrus Harun be excluded from the bench hearing the prosecution’s appeal against him and his lawyer Matthias Chang.

This follows Justice Idrus was formerly a solicitor-general in the Attorney-General’s Chambers when the Security Offences (Special Measures) Act was drafted in 2012.

Khairuddin’s lawyer Mohd Haniff Khatri Abdulla said the Court of Appeal registrar accepted the request and Justice Idrus and Court of Appeal judge Justice Mohd Zawawi Mohd Salleh would not be hearing the prosecution’s appeal.

The prosecution is appealing the Kuala Lumpur High Court decision last Nov 18 that Chang and Khairuddin’s charge of allegedly sabotaging banking and financial services should not be constituted under Sosma.

It was reported last month when the hearing of the prosecution’s appeal was fixed that Khairuddin had applied that Justice Zawawi be recused as he was a neighbour of Khairuddin’s sister.

Haniff told reporters that the prosecution's appeal is fixed for April 20 for further case management and fix a hearing date following the outcome of Khairuddin's motion.

Khairuddin to be heard first

On April 20, the Court of Appeal will also hear Khairuddin's notice of motion to strike out the notice of appeal filed by the prosecution.

According to Haniff, Khairuddin's motion will have to be heard first as it is a motion to strike out the appeal or invalidate it.

“If the application is in our favour, then there is nothing to be heard in the prosecution's appeal. If the decision goes against us, then the court will fix another date to hear the prosecution's appeal,” he said.

Khairuddin is questioning the notice of appeal filed by the prosecution under Section 53 of the Courts of Judicature Act, that the prosecution need to apply for leave (permission) if it wants to appeal against the decision.

They had previously argued that if the defence failed, they had to apply for leave but this was not necessarily so for the prosecution, and Khairuddin claimed this violated his constitutional right of equality before the law.

All submissions and reply by both parties have to be made before April 13.

Khairuddin and Chang are charged under Section 124 L of the Penal Code, for attempting to sabotage the country's banking and financial services sector when they lodged reports in Switzerland, United Kingdom, Hong Kong, Singapore, and New York against 1MDB.