The Malaysian Insight

FORMER prime minister Najib Razak’s appeal to disqualify lawyer Gopal Sri Ram from leading the prosecution in his 1Malaysia Development Bhd (1MDB) audit tampering trial will be decided on February 15.

Kuala Lumpur High Court judge Mohamed Zaini Mazlan fixed the date after hearing arguments by Najib’s lawyer Muhammad Shafee Abdullah.

Zaini: Even if Sri Ram is biased, he alone cannot dictate the prosecution and hide any evidence without the knowledge of his team. Aren’t you comforted that there are other DPPs in the team?

(DPP Ahmad Akram Gharib and DPP Mohammad Mustaffa P Kunyalam are also in the prosecution team.)

Shafee: But Sri Ram is the spearhead of the team, and they might be overwhelmed since he is a 71-year-old lawyer with vast experience.

Zaini: Well, they could go running to the Attorney-General.

Shafee: Then they would be in conflict with Sri Ram because they cannot be seen to be against their leader.

Zaini: If that is your concern, can you not raise in court the evidence that he might hide?

Shafee: Yes, but we are now begging for mercy for anything that we can use for the case.

The application to disqualify Sri Ram was filed on June 12 last year and the hearing has been postponed at least twice; once on October 16, 2020 due to conditional movement-control order (CMCO), and next on January 8, 2021 due to Shafee’s medical leave.

Najib, who is Pekan MP, is seeking a declaration that Sri Ram had displayed bias and mala fide, inter alia, by having preconceived and predetermined notions of the applicant’s guilt even before he was officially charged in any court or any order or relief, which the court may deem fit and proper in the circumstances.

Najib’s application is supported by two affidavits, one filed by Najib himself and the other by former attorney-general Mohamed Apandi Ali.

Apandi in his affidavit said one afternoon in January 2018, Sri Ram came to his house in Jalan Dutamas, after the latter made a couple of calls wanting to speak to him personally and privately.

Apandi said Sri Ram had told him that he should have listened to advice to charge Najib.

DPP Akram today said Sri Ram had not been unprofessional when persuading Apandi to charge Najib, as he had ended his statements with “in my humble opinion”.

Akram also described Apandi and Sri Ram as “buddies” and their conversation as one between a fellow judge to another.

Besides seeking to disqualify Sri Ram as prosecutor from his trial, Najib is also seeking a declaration on a conflict of interest between Sri Ram’s appointment as a senior deputy public prosecutor under Section 376(3) of the Criminal Procedure Code (CPC) and his practice as an Advocate Solicitor of the High Court of Malaya.

Shafee told the court today that Section 376(3) is insufficient and needs to be accompanied with Section 379 of the CPC.

In the 1MDB audit tampering trial, Najib, 68, is charged with using his position to order amendments to the 1MDB final audit report before it was presented to the Public Accounts Committee (PAC) to prevent any action being taken against him.

And ex-1MDB chief executive officer (CEO) Arul Kanda, 46, is charged with abetting Najib in making the amendments to the report to protect Najib from being subjected to action.

Both are charged under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, which provides for a jail term of up to 20 years and a fine of not less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.

The 1MDB audit tampering trial will resume on February 22. – January 27, 2021.