Rosmah fails in bid to recuse Gopal Sri Ram, nullify trial proceedings

KUALA LUMPUR (Sept 24): The High Court today dismissed Datin Seri Rosmah Mansor's application to remove Datuk Seri Gopal Sri Ram from leading the prosecution and in effect nullify her corruption proceedings involving the RM1.25 billion solar hybrid project for 369 rural schools in Sarawak.

Rosmah, in her application, was also seeking to be acquitted and discharged, arising from the declarations sought.

High Court Judge Justice Mohamed Zaini Mazlan today ruled that Sri Ram's appointment as a senior deputy public prosecutor (DPP) by then Attorney General Tan Sri Tommy Thomas was validly done under Section 376(3) of the Criminal Procedure Code (CPC).

According to the CPC, Section 376(3) refers to the power of the Attorney General to appoint fit and proper persons to be DPPs and who may be designated as senior DPPs.

"I therefore see no necessity to address the validity of the first written fiat of Datuk Seri Gopal Sri Ram’s appointment under it, which is the essence of the applicant’s application. This has ceased to become a moot point as I found Datuk Seri Gopal Sri Ram’s appointment by Tan Sri Tommy Thomas under Section 376(3) 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 application for declarations, among others, that the validity of the first written fiat of Datuk Seri Gopal Sri Ram’s appointment as a senior DPP and for the trial to be declared a nullity must fail," Justice Zaini said as he read out his judgement. 

The judge was referring to Rosmah's application to see Sri Ram's "fiat" or letter of appointment to lead the prosecution, which was previously allowed by the Court of Appeal.

Following the delivery of the judgement, Rosmah's lawyer Datuk Akberdin Abdul Kader stood up to apply for a stay of proceedings in order to file an appeal against the decision in the Court of Appeal. 

In response, DPP Ahmad Akram Gharib conceded that it was indeed an appealable order, but argued that an appeal against the decision should not automatically result in a stay of proceedings. 

Following intense deliberations during oral submissions on the matter, Justice Zaini eventually dismissed the application for a stay of proceedings. 

Citing a previous judgement by former Chief Justice of Malaysia Tan Sri Richard Malanjum, Justice Zaini said: "A stay of criminal proceedings will only be granted in the rarest of cases and the fact that the proceedings may be rendered a nullity is not a special circumstance. In the context of an application for a stay of proceedings, it is also immaterial that the accused is put to the expense of a trial even if he is subsequently vindicated on appeal.

"So on that basis, I'm dismissing the application for a stay. You can of course apply for a stay in the Court of Appeal," he added. 

As it stands, Rosmah's defence will tentatively begin on Oct 5. On Feb 18, Justice Zaini ordered Rosmah to enter her defence over all three graft charges in relation to the solar hybrid project for 369 rural schools in Sarawak after 23 prosecution witnesses testified against her.

The wife of former prime minister Datuk Seri Najib Razak was charged with soliciting a RM187.5 million bribe out of the RM1.25 billion project that was awarded to then Jepak Holdings Sdn Bhd managing director Saidi Abang Samsudin between January and April 2016 through her aide Datuk Rizal Mansor.

She also faces two charges of receiving a total of RM6.5 million — RM1.5 million and RM5 million respectively — from Saidi between Dec 20, 2016 and Sept 7, 2017 at her official residence in Seri Perdana, Putrajaya and her private residence in Jalan Langgak Duta here.

Rosmah opted to testify under oath from the witness stand, which means she can be cross-examined by the prosecution after she gives evidence in her defence. Sri Ram previously said that he will take up the torch of cross-examining Rosmah.

It is assumed, based on conventions, that Rosmah as the accused will be the first defence witness to be called.

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