Najib, Shafee lose appeal in bid to disqualify Sri Ram as lead prosecutor in their cases

  • Nation
  • Monday, 08 Nov 2021

PUTRAJAYA: The Court of Appeal has dismissed appeals by Datuk Seri Najib Razak and his lawyer Tan Sri Muhammad Shafee Abdullah to disqualify Datuk Seri Gopal Sri Ram from leading the prosecution in their cases.

In a unanimous decision on Monday (Nov 8), Justice Yaacob Md Sam said the High Court did not err when it dismissed the appellants' judicial review applications which could warrant the Court of Appeal's intervention.

Justice Yaacob, who chaired a three-man panel, said the main issues brought before the lower court in the judicial review applications were focused on the legality, validity and appropriateness of Sri Ram's appointment as a senior deputy public prosecutor (DPP) by the then Attorney General Tan Sri Tommy Thomas.

Sri Ram, a former Federal Court judge, was appointed by the Attorney General's Chambers under Section 376(3) of the Criminal Procedure Code to lead the prosecution in 1Malaysia Development Bhd- (1MDB) linked cases.

Najib and Muhammad Shafee had argued, among others, that Sri Ram's appointment as DPP raises the issue of conflict of interest as he is also actively practising as an advocate and solicitor; that he needed to be appointed as a DPP first before becoming a designate senior DPP; and that the AG had acted beyond his ambit of power with the appointment.

"We are of the view that Sri Ram is more than qualified as a fit and proper person to be appointed as senior DPP and that Section 376(3) is a standalone provision for anyone who is considered a fit and proper person to be appointed as DPP or senior DPP," Justice Yaacob said in a Zoom proceeding here.

The court was of the opinion that the plain, ordinary and grammatical meaning of the expression or words in Section 376(3) must be construed in harmony on the appointment of a fit and proper person as a DPP, and it was immaterial whether the appointment was as a DPP first or directly as a senior DPP.

"The carrying of the word 'senior' does not render Sri Ram's appointment invalid, or void, or of no effect.

"Because it is manifestly clear, in amending Section 376(3), the Parliament had intended to give power to the AG to appoint and designate any fit and proper persons as a senior DPP," Justice Yaacob added.

The court also agreed with the lower court that there was nothing in the provision that stated "a fit and proper person" to be appointed as DPP must come from judicial and legal services or public servants.

"There is no such requirement in law," he added.

Justice Yaacob also said the appellants had failed to prove that the AG acted mala fide and contravened the law in Sri Ram's appointment.

The other two judges on the panel were Justices Lee Heng Cheong and Che Mohd Ruzima Ghazali.

The panel then dismissed both appeals and affirmed the order of the High Court.

It, however, allowed for the order of RM10,000 in costs fixed by the lower court to be set aside.

Muhammad Shafee, who appeared in the Zoom proceedings from New York, represented Najib, while lawyer Harvinderjit Singh represented Muhammad Shafee.

Senior Federal Counsel Shamsul Bolhassan appeared for the respondents, namely the government, the Attorney General and Sri Ram.

Najib and Muhammad Shafee were appealing against a Kuala Lumpur High Court decision on Aug 28 last year on their judicial review applications to challenge the validity of Sri Ram's appointment as senior DPP in their criminal court cases.

In her decision, High Court judge Justice Mariana Yahya, who is now a Court of Appeal judge, said Sri Ram's appointment was valid.

Najib filed the judicial review application to disqualify Sri Ram in his 1MDB-linked cases in December 2018 while Muhammad Shafee also filed a judicial review application to recuse Sri Ram from his RM9.5mil money-laundering trial.

They sought a court order to revoke Sri Ram’s appointment or recuse him on grounds that his letter of appointment was invalid.

They also wanted a declaration that there was a conflict of interest in Sri Ram's appointment and requested an order to prohibit him from leading the prosecution team in all of their cases, including those for corruption, abuse of power and money laundering.

The two applications were filed separately but heard together as they involved identical legal issues.

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