KUALA LUMPUR, Feb 20 — The Criminal High Court was told today that lawyer Datuk Seri Gopal Sri Ram is unfit to lead the prosecution against Datuk Seri Najib Razak in 1Malaysia Development Berhad-linked (1MDB) cases, as he is allegedly biased and akin to a “hitman”.
Najib’s lawyer Harvinder Singh claimed, in an application to disqualify Sri Ram as lead prosecutor, that Sri Ram’s alleged involvement in both investigations and prosecution of the 1MDB cases results in “conflict of interest”.
“Once a prosecutor has acted in investigations, he cannot then be prosecutor in court,” he told the Criminal High Court in Kuala Lumpur.
Although noting that Sri Ram had in court documents denied conflict of interest, Harvinder listed four points as alleged proof of Sri Ram’s involvement in the two roles, including the attorney general’s August 31, 2018 comment that Sri Ram’s announcement would “enhance the investigation and prosecution” on 1MDB matters.
Harvinder also relied on a brief excerpt from the published transcript of Attorney General Tommy Thomas’s interview with the media last September, particularly a line on Sri Ram’s appointed role as prosecutor that said “Sri Ram is to push 1MDB and perhaps argue in Court for two of those cases”.
Harvinder claimed Sri Ram’s letter of appointment states that he was to conduct and have supervision of the investigation and prosecution of 1MDB-linked cases.
Harvinder said the test is whether a reasonably informed member of the public would come to the conclusion that the “proper administration of justice” requires Sri Ram to be disqualified, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
“Any reasonable member of public will have to consider that he is not fit for the case, because he’s not impartial and he’s biased,” he said, later arguing that the 1MDB case is akin to Sri Ram’s “baby” that has been brought from investigation stage to the courts for prosecution.
Harvinder said a prosecutor should be “detached” instead of coming to courts with the pre-set idea that an accused is guilty, arguing that Sri Ram would not be “objective” and would not be impartial due to his alleged involvement in the investigation stage.
Harvinder highlighted Najib’s right to a fair trial and repeatedly stressed that it was a matter of “perception”.
“It’s about perception...Will justice be seen to be done if he also prosecutes? Will it be prosecution or persecution?” he asked.
Among other things, Harvinder also highlighted Sri Ram’s previous role as Datuk Seri Anwar Ibrahim’s lead defence lawyer in the Sodomy II appeals and his current role as Anwar’s lawyer in a Sodomy II-linked court case against Putrajaya.
“Never has there been a situation where a senior DPP is acting for a private person in a suit against the government of Malaysia,” he said.
Tan Sri Muhammad Shafee Abdullah, another lawyer representing Najib, said it was important to have an impartial prosecutor in order to have a fair trial, where information would not be withheld from the defence.
Deputy public prosecutor Ahmad Akram Gharib today raised a preliminary objection by the prosecution against Najib’s motion to disqualify Sri Ram as prosecutor and also on Najib’s affidavit in response in the matter.
“We respectfully submit that the motion is bad from head to foot, and the affidavit is out of order. We ask your Lordship to dismiss the motion because it is a non-starter from the beginning,” he said.
Hearing will resume before High Court Judge Collin Lawrence Sequerah on Friday morning, with Ahmad Akram expected to respond to the arguments from Najib’s lawyers.
On December 21, Najib had applied to disqualify Sri Ram from leading the prosecution of three of his cases — namely 25 charges of money-laundering and power abuse involving more than RM2 billion of 1MDB funds; six charges of criminal breach of trust over RM6.64 billion; and one charge of power abuse involving the alleged tampering of the auditor-general’s 1MDB audit report.
Najib had sought for seven orders and declarations, including an order for the prosecution to provide a copy of Sri Ram’s letter of appointment as a senior deputy public prosecutor under Section 376(3) of the Criminal Procedure Code.
Najib also wants a declaration that Sri Ram’s appointment is ultra vires or beyond the powers of the public prosecutor and is therefore null and void; while also asking the courts to declare that Sri Ram is not a “fit and proper person” to have been appointed senior DPP.
Najib also wants a declaration that there is a conflict of interest between Sri Ram’s appointment as senior public prosecutor and his continued practice as a lawyer, and a declaration that the latter has acted in conflict of interest of his appointment as senior DPP.
This is not the only court bid by Najib to have Sri Ram disqualifed as his lead prosecutor, as he has also filed a separate challenge by seeking a judicial review at the civil High Court in Kuala Lumpur.
Earlier today, High Court judge Datuk Azizah Nawawi dismissed Najib’s and Shafee’s separate applications for leave for judicial review to ultimately stop Sri Ram from prosecuting their cases.
Azizah said that Najib’s applications in both the civil and criminal courts were seeking for the same results, and that it would be more convenient for the matter to be addressed at the criminal High Court as the main trial was also there.
Najib’s lawyers today said that they will appeal Azizah’s decision.