KUALA LUMPUR, Feb 22 ― Local laws do not provide for Datuk Seri Najib Razak’s bid for the government letter appointing private lawyer Datuk Seri Gopal Sri Ram as the prosecutor for 1Malaysia Development Berhad (1MDB) cases, Attorney General (AG) Tommy Thomas said today.
Thomas today also personally confirmed to the High Court that he appointed Sri Ram as the prosecutor for 1MDB cases, and noted that he had already announced this appointment on August 31.
Noting that Sri Ram had on multiple times already appeared on behalf of the public prosecutor for many court cases since the appointment and that it would be “baffling” for Sri Ram to do so without being appointed, Thomas said the facts do not support Najib's application to disqualify Sri Ram.
“There's absolutely no factual or evidential basis for the application by the applicant. The factual foundation is totally absent,” he told the Criminal High Court here.
Today was the continued hearing of Najib's bid to disqualify Sri Ram from leading the prosecution for three of his cases.
Thomas also argued today that local laws do not allow any party to seek the letter of appointment of their opponent's lawyer.
“A litigant has no legal right under Malaysian law to have sight of the letter of appointment or to question counsel of adverse parties, because that is clearly a privileged document between client and counsel.
“By definition it would contain secrets and confidential terms which are never intended to be viewed by any third party,” he told the court.
Thomas went on to explain that the only exception where the letter of appointment of lawyers may be sought for in civil cases, is when it was suspect if a lawyer had a practising certificate or was actually a practising lawyer.
For criminal proceedings, Thomas said the prosecution has no legal right to ask for the letter of appointment of any lawyers appointed by an accused, noting that the prosecution has not asked for such documents on the appointment of Najib's lawyers.
“So if we have not asked, how dare they ask how Sri Ram was appointed?” he said.
Najib's lawyer, Harvinder Singh, then asked Thomas to clarify if the appointment of Sri Ram was in writing and whether Sri Ram was appointed to a role involving both the investigation and prosecution of the 1MDB cases.
Thomas responded by again raising the privilege of client-lawyer confidentiality, which he argued also applies to the government of Malaysia.
“They have no right to ask. It's privileged and confidential between client and counsel. There's no difference between the government and private sector,” he said.
Deputy public prosecutor Ahmad Akram Gharib later told the court that Sri Ram was not involved in conducting investigations on Najib's 1MDB cases.
Ahmad Akram said Sri Ram, as an appointed senior deputy public prosecutor, merely had a supervising role in the investigations, where Sri Ram would provide legal advice to investigators such as whether certain evidence was admissible in court under the Evidence Act.
Hearing before High Court judge Collin Lawrence Sequerah will continue on February 28 afternoon, where Najib's lawyers are expected to respond to arguments made by the prosecution today.
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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 initially sought for seven orders and declarations via this application at the Criminal High Court.
Harvinder today said Najib would only pursue two court orders, namely an order for the prosecution to produce a copy of Sri Ram’s letter of appointment as a senior deputy public prosecutor under Section 376(3) of the Criminal Procedure Code, and an order that Sri Ram be disqualified from continuing to act as senior DPP on behalf of the public prosecutor in these cases.
This is not the only court bid by Najib to have Sri Ram disqualified 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.
On February 20, 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 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.
Today, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that his client’s applications regarding Sri Ram at the civil and criminal courts were different, and said an appeal has been filed against Azizah’s decision.
“We have filed the appeal on judicial review,” he told reporters when met after court proceedings.
