Najib Abdul Razak has failed in his legal bid to disqualify Gopal Sri Ram from prosecuting the former premier’s 1MDB-linked criminal court cases.
The Kuala Lumpur High Court dismissed his judicial review application during proceedings this afternoon.
Previously, the court had fixed today for a decision on the legal action which named former federal court judge Sri Ram, the attorney-general and the government as respondents.
Sri Ram is the lead deputy public prosecutor for Najib's RM2.28 billion 1MDB corruption case and 1MDB audit report tampering case.
The ruling by judge Mariana Yahya today also dismissed a similar judicial review application by Muhammad Shafee Abdullah to disqualify Sri Ram from prosecuting the veteran lawyer’s criminal case.
In reading out her 45-page judgment, Mariana said that the then attorney-general Tommy Thomas’ appointment of Sri Ram as senior DPP under Section 376(3) of the Criminal Procedure Code had been properly done.
“The appointment of Sri Ram as senior DPP under Section 376(3) of the CPC by the (then) attorney-general (Thomas) is valid.
“The attorney-general has not acted beyond his statutory and constitutional power and the appointment (of Sri Ram as senior DPP) is not assailable,” Mariana said.
Section 376(3) states that the Public Prosecutor (Attorney-General) may appoint a fit and proper person to be deputy public prosecutor and that the Public Prosecutor may designate the said DPP as senior deputy public prosecutor.
“The government, like any private party, can choose to appoint and authorise any advocate (lawyer) to appear on their behalf in any court of law.
“It is not open to the accused to suggest to the government to authorise an advocate to act on their behalf when the intent of the appointing authority (attorney-general) is clear and per the appointment of Sri Ram as senior DPP,” she added.
Mariana noted that Shafee himself was at one point appointed as an ad hoc DPP by the attorney-general for PKR president Anwar Ibrahim’s sodomy appeal at the Court of Appeal and later at the Federal Court (in 2015).
The judge pointed out that Shafee’s appointment was also done under Section 376(3) despite the legal teams for Najib and Shafee having previously submitted that Sri Ram’s appointment under the same provision was invalid.
Previously, the legal teams in their submissions had argued that Section 376(3) was only meant for the appointment of DPPs from the legal service (Attorney-General's Chambers among others) rather than a practising advocate such as Sri Ram, among others.
“The applicants (Najib and Shafee) cannot now claim that Section 376(3) is only meant for the appointment of DPPs from those of the legal service. The applicants cannot blow hot and cold over the issue,” she said.
In reference to Najib and Shafee filing an affidavit by former attorney-general Mohamed Apandi Ali to support the duo’s legal bid to oust Sri Ram, Mariana pointed out that the allegation within the affidavit was not initially part of the judicial review applications.
On June 29, it was reported that Najib and Shafee had filed Apandi’s affidavit to support their judicial review applications to disqualify Sri Ram as senior DPP for the duo’s criminal cases.
The judge noted that Apandi’s affidavit was filed at the “eleventh hour” to try to prove Najib and Shafee’s contention that Sri Ram was not a fit and proper person to be appointed senior DPP due to alleged bias.
“The issue here (in the judicial review applications) should only be confined to the (issue of) the appointment under Section 376 of the CPC.
“Although that affidavit (Apandi) was referred to in this court, it is not the pleaded issue (initially in the judicial review applications).
“The pleaded case here is whether the appointment (of Sri Ram) is under Section 376 or 379 (of the CPC) or whether Sri Ram can be full-time or part-time DPP,” she said.
Mariana added that in the present matter, then attorney-general Thomas had made careful consideration before appointing Sri Ram as senior DPP in the 1MDB case due to his (Sri Ram's) vast experience in the legal field.
“Therefore, this court is of the view that Sri Ram’s appointment as senior DPP by the attorney-general under Section 376(3) is legal and valid.
“The attorney-general or public prosecutor has not acted outside the statutory and constitutional power, and it (Sri Ram’s appointment as senior DPP) is not null, void or has no effect.
“The court dismisses both applications with cost,” Mariana ruled. Najib was not present in court during proceedings this afternoon.
She then ordered both Najib and Shafee to pay a total of RM20,000 in costs to the three respondents in the matter.
Shafee then informed the High Court that both he and Najib would appeal today's ruling to the Court of Appeal.
Previously, the Kuala Lumpur High Court dismissed Najib’s application for leave to commence a judicial review to challenge Sri Ram’s appointment as DPP in the 1MDB-linked cases.
However, on appeal to the appellate court, he was granted leave to proceed with the legal bid. This was further upheld by the Federal Court, which remitted the matter back down to the High Court. - Mkini
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