Prosecution went on 'forum shopping' in contempt bid - Shafee's lawyer

The prosecution’s opting for a Kuala Lumpur High Court judge other than Mohd Nazlan Mohd Ghazali to hear its contempt application against Muhammad Shafee Abdullah (above) amounted to “forum shopping” which is an abuse of court process, argued his lawyer.

Shafee’s counsel David Mathews informed High Court judge Mohd Firuz Jaffril, before whom the contempt matter is currently heard at, that this was because the prosecution wished to avoid having the contempt bid be heard at Nazlan’s court.

Nazlan is the trial judge presiding over the ongoing hearing of former prime minister Najib Abdul Razak’s RM42 million SRC International case.

Mathews questioned why instead of following established practice of having a contempt application be heard by the same judge presiding over the matter linked to the contempt, the prosecution here sought a different judge (Firuz) to hear the matter.

“Surely the attorney-general could have acted in the earliest opportunity and have Justice Nazlan exercise his power (to hear the contempt bid against Shafee).

“His (Nazlan) lordship could have exercised his power immediately and obviate the need for the application (for the matter be heard before a different judge).

“They (prosecution) have not explained why they did not follow the specific procedure (of having the contempt application be heard before Nazlan).

“The only inference that can be drawn here is that they wish to avoid Justice Nazlan.

“This is forum shopping which includes judge-avoidance, which is an abuse of court process,” Mathews submitted this afternoon.

The lawyer argued that Nazlan’s court would have been the best forum to hear the contempt bid as Shafee’s purported contemptuous remark was made when Shafee was met by the media after the SRC International matter at Nazlan’s court.

“It was alleged that the words contemptuous to the charge would place the trial judge in an embarrassing position and pressure the judge.

“So this matter should have been brought before Justice Nazlan, to begin with. The AG (Attorney-General Tommy Thomas) affirmed that the judge (in the contempt application) referred to Justice Nazlan.

“Having confirmed the reference to Justice Nazlan, who sits over the SRC (International) case, (he) is (therefore) in the best position to determine if the (alleged contemptuous) words would place him in an embarrassing situation or pressure him.

“He is the best person to determine if the words (that may) arise to contempt (amounted to) interference (in the SRC International trial).

“The defendant (Shafee) was involved in the (SRC International) case as lead counsel (for Najib),” Mathews submitted.

He argued that the prosecution’s mode of making the contempt application before Firuz rather than Nazlan (photo) showed this was an intentional breach of normal procedure which is calculated to result in a miscarriage of justice and prejudice to Shafee.

The lawyer claimed that the attorney-general did not make a specific denial of this allegation in his affidavit in the case.

“There is a big elephant in the room but there is no explanation as to why.

“There is a burning question of why was this not made before Justice Nazlan,” Mathews informed the court.

Meanwhile, Shafee’s other counsel Harvinderjit Singh argued that based on what was set out in the prosecution’s court papers, Shafee’s statement that purportedly amounted to contempt came off rather as a “chest-thumping statement rather than one that scandalises the court.

“This is a chest-thumping statement, but can we say now that anybody reading that statement can say Najib is going to be convicted (in the RM42 million SRC International case)?

“The average reader of reasonable intelligence would know the difference between a chest-thumping statement and (one that is) scandalising to the court,” said Harvinderjit.

The lawyer also claimed that the prosecution’s court papers did not provide sufficient details required for a contempt application per Order 52 Rule 3 of the Rules of Court 2012.

Hearing before Firuz will resume on June 14, with the prosecution expected to reply to arguments raised by Shafee’s legal team.

On March 1, Firuz granted leave to the prosecution to proceed with contempt proceedings against Shafee. 

This is over comments Shafee made in a KiniTV videoentitled "Shafee: This is completely bonkers".  - Mkini