PUTRAJAYA (March 26): The Federal Court has dismissed Datin Seri Rosmah Mansor’s bid to challenge the validity of the late Datuk Seri Gopal Sri Ram’s appointment as the lead deputy public prosecutor in her solar hybrid project graft trial, and hence, for a declaration that her trial be deemed as void.

A three-member panel, led by President of the Court of Appeal of Malaysia Datuk Abang Iskandar Abang Hashim, dismissed Rosmah’s leave application, as they found that there were no novel issues of public importance in it.

“We are unanimous in our view that this application does not meet the threshold under [the Courts of Judicature Act (CJA)]. There is no novel issue that has been shown that would merit further ventilation,” he said, adding that there were no issues of public importance that deserve further consideration by the court.

The others on the bench were Federal Court judges Datuk Abdul Karim Abdul Jalil and Datuk Nordin Hassan.

The court awarded the cost of RM30,000 to the Government and the Attorney General’s Chambers (AGC) on Tuesday.

Rosmah’s previous attempt to disqualify Sri Ram and nullify the solar trial had already been dismissed by the Criminal High Court, the Court of Appeal (COA), and the Federal Court. In brief, the COA and Federal Court found that the criminal court had no jurisdiction to grant the declaratory reliefs sought by Rosmah.

She then filed a fresh application to disqualify the former Federal Court judge via a judicial review.

The High Court dismissed her leave application in August 2022, after allowing the AGC and Sri Ram’s preliminary objections that her application was filed out of time.

She then appealed at the appellate court, which later dismissed her application in June last year, on grounds that there was no merit.

Rosmah went on to file a leave application to appeal the Court of Appeal’s decision. In civil cases at the Federal Court, leave or permission has to be granted before the merits of the case is heard, so as to ensure that the application is not vexatious.

Dispute over when grounds for dissatisfaction arose

At the heart of the contention is the legality of Sri Ram’s letters of appointment (or “fiats”) dated July 8, 2020, May 11 and May 21, 2021, and also if Rosmah’s application was filed within a three-month period from when the grounds for dissatisfaction first arose.

Rosmah’s counsels Datuk Akberdin Abdul Kader and Datuk Jagjit Singh argued that the application was made within time, as they had waited for the final decision at the Federal Court in May 2022, before proceeding with the judicial review application, which was filed later, in June.

Rosmah’s lawyers Datuk Akberdin Abdul Kader (left) and Datuk Jagjit Singh. Rosmah was not present at the Federal Court on Tuesday. (Photo by Shahrin Yahya/The Edge)

On Tuesday, Jagjit argued that there were novel issues in the application for the court to consider. This includes whether fiats can be backdated and if they can be delivered orally. He also added that the fiats did not specifically refer to Rosmah’s solar hybrid project trial but mentioned cases in relation to 1Malaysia Development Bhd (1MDB).

Akberdin argued that the High Court and the COA in this matter were only concerned with the first date when the grounds first arose — Nov 15, 2018, when she was charged. He said that the court did not give weight to the second letter issued orally on May 21.

He argued that the issue of nullity itself should concern the courts, as the idea of fairness requires a fair trial.

Senior federal counsels Liew Horng Bin and Shamsul Bolhassan appeared for the respondents — the Government, the AGC and the late Datuk Seri Gopal Sri Ram.

Liew, among others, noted that there was already an existing case precedence from the Federal Court in 2014 involving Datuk Seri Anwar Ibrahim, which says that any challenge to the DPP’s appointment has to be done by way of a judicial review and not through the criminal procedure.

Senior federal counsels Shamsul Bolhassan and Liew Horng Bin (left) appeared for the respondents (the Government, the Attorney General’s Chambers and the late Datuk Seri Gopal Sri Ram) on Tuesday. (Photo by Shahrin Yahya/The Edge)

He argued that the defence ought to be aware of this and that they also had other opportunities to question Sri Ram’s appointment, even before the apex court judgement in May 2022.

Liew said that there was a case involving Rosmah’s husband, imprisoned former prime minister Datuk Seri Najib Razak in 2019, where the COA had already ruled that the route to disqualify a DPP is by way of a judicial review.

He added that Rosmah's application was indeed filed out of time, arising from a plain ignorance of law.

In September 2022, the High Court found Rosmah guilty of all three counts of graft relating to a solar hybrid project for 369 schools in rural Sarawak. She was sentenced to 10 years in jail and fined RM970 million.

A stay was granted, pending disposal of her appeal. The hearing date has yet to be fixed.

A case management came up for the matter on Tuesday, where the court set April 23 as a further case management date.