PUTRAJAYA, May 7 — The Court of Appeal today dismissed Datuk Seri Najib Razak’s appeal to strike out former judge Datuk Seri Gopal Sri Ram as the prosecutor in the former prime minister’s 1Malaysia Development Berhad (1MDB) cases.
A three-judge Bench chaired by Datuk Zabariah Mohd Yusof unanimously ruled that Najib’s appeal to get Gopal’s appointment letter on the grounds of the latter’s alleged involvement in the 1MDB investigations would not affect his rights to a fair trial.
However, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah told the court his client intends to appeal against the dismissal at the Federal Court.
Deputy Public Prosecutor Ahmad Akram Gharib appeared for the prosecution.
In her oral ruling, Zabariah said the panel disagreed with Najib’s lawyers that the Pekan MP could be subject to possible bias if Gopal were to prosecute, saying there was nothing produced in court to back their argument.
She said that the crux of the issue was whether or not Najib’s rights would be affected if he did not get to see Gopal’s letter of appointment or if the High Court allowed Gopal to continue as prosecutor in the 1MDB cases.
“We are of the view that it certainly does not.
“It appears that the fact of the decision of the High Court would mean that the appellant would not have rights to sight of Gopal Sri Ram’s letter of appointment and that Gopal Sri Ram would continue to act as senior DPP in the cases involving the appellant; it does not dispose of the appellant’s rights,” she said, using the abbreviation for deputy public prosecutor.
“We fail to see how that would affect the appellate’s rights to have a fair trial,” said Zabariah.
The other two judges on the panel were Datuk Rhodzariah Bujang and Datuk Lau Bee Lan.
“We are of the view that the learned judge did not err, in fact or in law, when he found Gopal Sri Ram is fit to be appointed as a senior DPP, and dismissed the notice of motion.
“The appeal, in our view, has no merits and we, therefore, dismiss the appeal by the appellant; the decision of the learned High Court judge is therefore upheld,” Zabariah said.
Explaining the judgment, Zabariah said there was no basis for the appellant’s request for Gopal Sri Ram’s appointment letter to be produced, saying it was not required under Section 376 of the Criminal Procedure Code.
She noted that since Najib’s other counsel, Harvinderjit Singh, has sighted the documents, the three judges did not see a need to make the prosecution provide the document to Najib.
“Therefore we find there is no basis for the requirement of the letter of appointment to be produced by the respondent, and we find that the learned judge did not err in his finding that the respondent is not obliged to produce the letter of appointment to the appellant,” she said.
Najib faces 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.
On December 21 last year, Najib applied to disqualify Gopal from leading the prosecution in three of his cases.
On March 1, the High Court dismissed Najib’s bid to disqualify Gopal, finding that there was no evidence to show the latter would be biased or that Najib would be denied a fair trial.
Zabariah today had also rejected previous arguments that Gopal Sri Ram was unfit to be appointed as a DPP alleging direct involvement in case investigations and impartiality, citing a lack of concrete evidence for the unsubstantiated claims.
She ruled that information released through a media statement and through media interviews by the attorney general in August and September last year did not amount to Gopal Sri Ram being involved in investigations as alleged by the appellants.
Zabariah noted that 1MDB investigations had started under the previous administration and resumed only post 14th General Election, with Gopal Sri Ram only being appointed senior prosecutor in August last year, not sufficiently substantiating the arguments by Najib’s lawyers.
“Gopal Sri Ram, like any other DPPs, is entitled to supervise and oversee an investigation into a particular case but not in investigating the case himself.
“Therefore we do not find that the learned judge had erred when we found that the allegations that Gopal Sri Ram was involved in investigations against the appellant are unsubstantiated,” she said.