Rosmah fails in bid to recuse Sri Ram, declare trial a nullity

Judge Mohamed Zaini Mazlan in his brief decision said the authorisation given by the then Attorney-General (AG) Tan Sri Tommy Thomas to Sri Ram to conduct the criminal prosecution in Rosmah's case is without doubt validly done under Section 376 (3) of the Criminal Procedure Code (CPC) in his capacity as the Public Prosecutor.

"Thomas had clearly stated that he had, after appointing Sri Ram to lead the prosecution in 1Malaysia Development Berhad (1MDB) cases, subsequently authorised him (Sri Ram) to conduct the prosecution for the criminal cases against the applicant (Rosmah).

"It is public knowledge that Sri Ram had been conducting the prosecution against the applicant from the onset at the High Court, and he did so with a team of prosecutors from the Attorney-General's Chambers.

"It defies belief that Sri Ram could do so without the knowledge and sanction of Thomas being the then AG and also the current AG," said Mohamed Zaini.

The judge added he is resolute that this authorisation need not be evidenced in writing.

"I, therefore, see no necessity to address the validity of the first written fiat (appointment letter) or Sri Ram's appointment under it which are the essence of the applicant's application as I have found his (Sri Ram) appointment by Thomas under Section 376 (3) of the CPC to be valid.

"In my view, there is no necessity for the first nor the second written fiat to be issued, it follows that the applicant's applications for a declaration on amongst others the validity of the first written fiat, Sri Ram's appointment as a senior deputy public prosecutor (DPP) and for the trial to be declared a nullity must fail," said the judge.

Mohamed Zaini further said he took cognisance of the fact that the respondent (prosecution) had issued the second written fiat out of an abundance of caution.

"As for the second written fiat which was issued out of abundant caution by the Public Prosecutor, it struck me that it was issued to allay the applicant's complain of Sri Ram's appointment.

"I am inclined to agree with the prosecution's proposition that the Public Prosecutor, being an authority empowered to appoint a person to exercise a function, as spelt out under Section 50 of the Consolidated Interpretation Act 1948 and 1967, is entitled to make Sri Ram's appointment with retrospective effect as set out under Section 50 (b) of this act.

"The applicant's applications are therefore dismissed," he said.

The wife of the former Prime Minister Datuk Seri Najib Tun Razak filed two applications at the High Court here on May 6 this year seeking to nullify her entire trial, in her bid to be acquitted of all three charges, as well as to remove Sri Ram as the lead prosecutor.

Rosmah filed the applications after the Court of Appeal had on April 8 allowed her appeal to get a copy of Sri Ram's appointment letter after the prosecution agreed to provide it to the defence team.

She brought the matter up for appeal after the High Court dismissed her application over Sri Ram's appointment letter on Aug 19 last year.

Meanwhile, Mohamed Zaini also dismissed Rosmah's application to stay of proceeding pending appeal of today's decision to the Court of Appeal on the grounds that nullity is not considered a special circumstance to stay a trial.

"A stay of criminal proceedings will only be granted in the rarest of cases, the fact that the proceedings may be rendered a nullity is not a special circumstance. On that basis, I'm dismissing this application for a stay," the judge added.

During today's proceeding, Rosmah is represented by Datuk Jagjit Singh, Datuk Akberdin Abdul Kader and Azrul Zulkifli Stork while Deputy Public Prosecutors Ahmad Akram Gharib and Mohamad Mustafa P. Kunyalam appeared for the prosecution.

Rosmah is scheduled to take the stand when the defence case begins on Oct 5 after Judge Mohamed Zaini ordered Rosmah to enter her defence on all three corruption charges related to the solar hybrid project for 369 rural schools in Sarawak, on Feb 18, 2021.