KUALA LUMPUR: There has never been prosecutorial misconduct involving ad hoc prosecutor Datuk Seri Gopal Sri Ram that could warrant him being disqualified from appearing in Datuk Seri Najib Razak's 1Malaysia Development Bhd (1MDB)-linked cases, the High Court heard.
Deputy Public Prosecutor (DPP) Ahmad Akram Gharib said that Najib, as the applicant, had failed to show that Sri Ram had committed such misconduct in his bid to recuse the former Federal Court judge from prosecuting in the 1MDB audit report tampering case.
Akram was submitting in a hearing for the application brought forth by Najib before Justice Mohamed Zaini Mazlan here on Wednesday (Jan 27).
In the written submission, Akram said the applicant's apprehension of fears of overzealous prosecution by Sri Ram was only mere speculation, as opposed to actual prosecutorial misconduct.
"The threshold for the disqualification of Sri Ram was therefore not met," he added.
Meanwhile, Najib's lead counsel Tan Sri Muhammad Shafee Abdullah said the application to disqualify the prosecutor was not punitive but meant to serve as protection against bias.
"The disqualification we seek here is not punishment of anybody or Sri Ram. It is protection for parties and the public as well as for the wider interest of justice.
"Justice must not only be done, but seen to be done," he submitted.
Justice Zaini fixed Feb 15 to deliver his decision.
On June 12, last year, Najib filed the application to recuse Sri Ram which was supported by two affidavits filed by Najib and former attorney general Tan Sri Mohamed Apandi Ali.
In his application, Najib seeks a declaration that there was a conflict of interest between the appointment of Sri Ram as a senior DPP under Section 376(3) of the Criminal Procedure Code and his practice as an Advocate & Solicitor of the High Court of Malaya.
He also seeks a declaration that Sri Ram had acted and/or continues to act in conflict of interest of his purported appointment as a senior DPP, having displayed bias and mala fide, inter alia, by having preconceived and predetermined notions of the applicant’s guilt even before he was officially charged in any court or any order or relief which the court may deem fit and proper in the circumstances.
In Apandi's affidavit, he claimed that Sri Ram had tried to convince him to arrest Najib in January 2018, who was then the Prime Minister.
This was a claim Apandi first made on his Facebook page on June 10, where he alleged that Sri Ram visited him under the instructions of former prime minister Tun Dr Mahathir Mohamad and told him that he would be the people’s hero and the first AG to arrest a sitting prime minister.
In his affidavit-in-reply, Sri Ram dismissed Apandi’s allegations that he (Sri Ram) had been sent by Dr Mahathir to see the latter (Apandi) over the conversation to arrest Najib.
Sri Ram said he attended a meeting with Apandi and his wife at their home in a purely professional capacity and during the meeting, he rendered certain advice which was the subject matter of legal professional privilege.
Najib, 68, is charged with using his position to order amendments to the 1MDB final audit report before it was presented to the Public Accounts Committee to avoid any action being taken against him, while former 1MDB CEO Arul Kanda Kandasamy is charged with abetting Najib in making the amendments to the report to protect Najib from being subjected to action.
Both of them were charged under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, which provides for a jail term of up to 20 years and a fine of not less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.
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