KUALA LUMPUR, July 13 — Datuk Seri Najib Razak’s lawyer told the High Court today that Datuk Seri Gopal Sri Ram’s appointment as senior deputy public prosecutor in Najib’s ongoing 1MDB criminal trials was political in nature in order to fulfil the then Pakatan Harapan’s (PH) government election promise.
In Najib’s bid to challenge the appointment of Sri Ram as the prosecutor in his 1Malaysia Development Bhd (1MDB) trial, Harvinderjit Singh argued that then public prosecutor Tan Sri Tommy Thomas had exercised his powers under Section 376(3) of the Criminal Procedure Code wrongly.
“It was unreasonable, irrational and procedurally improper.
“Sri Ram’s appointment was to fulfil the election promises as noted by the then public prosecutor,” he said.
In regard to Sri Ram’s appointment, Harvinderjit pointed out that Sri Ram in his affidavit had conceded to the accuracy of a WhatsApp conversation with former attorney general (AG) Tan Sri Apandi Ali on May 12, three days after the 14th general election in 2018.
At the material time, Thomas had not been appointed AG yet and Apandi was still AG.
In one of the messages, Sri Ram had lamented that Apandi did not heed his advice to prosecute “criminal Najib” prior to May 12 but remarked that both Najib and his wife Datin Seri Rosmah Mansor were “certain to face the music”.
“That line is very telling. It means prior to May 9, Sri Ram had advised Apandi to charge Datuk Seri Najib. Take note that Sri Ram is not a senior DPP at this time.
“He has already predetermined the criminality. What is worse is he has predetermined they will face music. He has not seen the Investigation Papers but as a dictator said they will face music,” Harvinderjit said.
Harvinderjit then claimed that Sri Ram was appointed to fulfil one of the principle election promises made by the PH government, that is to resume the 1MDB investigations.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah also pointed out how Sri Ram was allegedly appointed in order to get Najib charged and convicted in the 1MDB-linked cases.
He cited how a disclosure made by former AG Apandi in an affidavit submitted to court had noted that Sri Ram allegedly said that the mere fact that monies are in Najib’s account by itself was sufficient to charge the former prime minister.
“But did he (Najib) know the money came from SRC, from 1MDB? According to Sri Ram that is not relevant, charge him first.
“That exposes his character over his unsuitability (to be appointed),” he said of Sri Ram not being a fit and proper person as stipulated under Section 376(3) of the CPC.
Section 376(3) reads: “The Public Prosecutor may appoint fit and proper persons to be Deputy Public Prosecutors who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally and he may designate any of such Deputy Public Prosecutors as Senior Deputy Public Prosecutors.”
Meanwhile senior federal counsel Shamsul Bolhassan who represents the AG/Public Prosecutor, Government of Malaysia and Sri Ram as respondents, said the government, like any private party, can choose and appoint or authorise any advocate to appear on their behalf in any court of law.
“Section 376(3) CPC is the adjectival vehicle through which the Public Prosecutor under Article 145(3) of the Federal Constitution exercises his prosecutorial prerogative in relation to the conduct of a criminal prosecution.
“It is respectfully submitted that the language of section 376(3) CPC is broad and permissive of the appointment of Sri Ram as a Senior Deputy Public Prosecutor.
“Section 376(3) CPC does not expressly limit the potential Senior Deputy Public Prosecutor from only among the Legal Officers serving under the Judicial and Legal Service,” he said.
Shamsul further argued that it is not open to an accused in the case to mount a challenge on trivial technical grounds the appointment of an advocate when the intention of the appointing authority is clear and the language of section 376(3) CPC is broad and permissive of the appointment of Sri Ram as a senior deputy public prosecutor.
“It is respectfully submitted that it is a sheer intellectual waste to engage in hair splitting argument on the legality of GSR appointment under section 376(3) CPC,” he added.
After hearing arguments from both sides, High Court judge Datuk Seri Mariana Yahya then fixed July 29 for further submission by both parties.
The case was remitted to the High Court after the Federal Court on October 15, 2019 dismissed the Attorney General’s Chambers, Sri Ram and the government’s application for leave to appeal the appellate court’s decision that granted the duo permission to make the challenge.
Najib and Muhammad Shafee had separately filed for the judicial review in December 2018 to challenge the AG’s decision to appoint Sri Ram as a deputy public prosecutor under Section 376 (3) of the Criminal Procedure Code.
They are seeking a court order to revoke Sri Ram’s appointment or recuse him, saying that his letter of appointment is invalid.
They are also seeking a declaration that there is a conflict of interest in Sri Ram’s appointment and request for an order to prohibit him from leading the prosecution team in all of their cases, including on corruption, abuse of power and money laundering.