Former premier Najib Abdul Razak will get another shot to disqualify former judge Gopal Sri Ram from leading the prosecution in his RM2.28 billion 1MDB trial.
A Court of Appeal panel reached a unanimous decision today to grant Najib leave to commence a judicial review to challenge the attorney general's appointment of Sri Ram as a deputy public prosecutor.
The three-member bench, headed by Hasnah Mohamed Hashim, quashed a Feb 19 Kuala Lumpur High Court ruling denying leave for the judicial review.
Today's decision also applies to lawyer Muhammad Shafee Abdullah's appeal to disqualify Sri Ram from prosecuting criminal cases against him.
Shafee was also denied leave to challenge Sri Ram's appointment by the same High Court on Feb 19.
Today’s Court of Appeal ruling is in regard to Najib's and Shafee’s civil-jurisdiction judicial review applications, which is distinct from Najib’s similar application at the criminal-jurisdiction level.
On Aug 7, a Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat dismissed an appeal by Najib in regard to his criminal-jurisdiction level bid to disqualify Sri Ram from leading the prosecuting team in the 1MDB case against Najib, among others.
In reading out the brief ruling, Hasnah said that the bench found merit in the appeal by Najib and Shafee.
“We are of the view that the nature and jurisdiction of the judicial review and disqualification motion before the criminal court are separate.
“The issue of multiplicity does not arise as the remedies are different.
“There is an arguable case and judicial review is not frivolous and abuse of (court) process,” she said.
“The Feb 19 2019 (Kuala Lumpur High Court) ruling is set aside. We set tomorrow Aug 27 2019 before the (Kuala Lumpur High Court) deputy registrar of Appellate and Special Powers Division,” Hasnah said, adding that the bench made no ruling on cost.
Back in Feb 19 this year, when dismissing the applications by Najib and Shafee for leave to commence judicial review against the decision to appoint Sri Ram (above) as DPP, then Kuala Lumpur High Court judge Azizah Nawawi ruled that even though the duo had an arguable case, she was not inclined to grant leave because there was already a similar disqualification bid at the criminal court jurisdiction.
Azizah has since been elevated as a Court of Appeal judge.
Meanwhile, when met after the proceedings, DPP Ahmad Akram Gharib, who appeared for the respondents, said that Sri Ram will still lead the 1MDB trial on Wednesday, despite today’s Court of Appeal ruling.
“The 1MDB trial will go on, on Wednesday. We will decide on the next course of action (in regard to whether to appeal today’s ruling),” Akram said.
The three respondents in the appeals are Sri Ram, the Attorney-General/Prosecution of Malaysia (Peguam Negara/Pendakwaraya Malaysia), and the government of Malaysia.
Speaking to journalists after the proceedings, Shafee said that today’s Court of Appeal matter is in regard to his and Najib’s judicial review application, which was premised on the reason that Sri Ram’s appointment by the Attorney-General was done ‘ultra vires’.
'Ultra vires' is a legal Latin maxim which means acting beyond one’s legal power and authority.
He said that today’s decision is distinct from the other similar legal challenge against Sri Ram’s appointment at the criminal court jurisdiction, which was premised on the reason that the former federal court judge should be disqualified by reason of misconduct, and not a fit and proper person to be appointed as DPP.
Shafee said that the civil-jurisdiction disqualification attempt today is instead premised on the argument that Sri Ram’s appointment contravened procedure per Section 376, read with 377 and 379 of the Criminal Procedure Code.
He said that Sri Ram’s appointment was done solely under Section 376, which he said dealt with the appointment of DPPs as public servants.
“The appointment (of a private practitioner Sri Ram as DPP) should not be allowed by law (merely under Section 376, without linking it to Sections 377 and 379) as it is for a public servant only,” Shafee said.
He said that during the hearing of the merit of the judicial review applications at the Kuala Lumpur High Court later, they would raise the issue of Sri Ram’s letter of appointment allegedly containing terms that include the power to investigate, as well as prosecute.
On whether today’s Court of Appeal ruling will have an impact on the scheduled first-day hearing of Najib’s RM2.28 billion 1MDB trial on Wednesday, Shafee said “if they (prosecution) are smart, they will seek to postpone the case on Wednesday”.
“Prosecution by a non-qualified person (Sri Ram) will nullify the case. We do not want to be accused of trying to delay the trial.
“The ball is now at their (prosecution’s) feet as the Court (of Appeal) gave us leave (to commence with a judicial review at the Kuala Lumpur High Court)
“We do not have to. They (prosecution) are taking the risk,” Shafee said.