KUALA LUMPUR (Aug 30): Datin Seri Rosmah Mansor has failed in her bid to once again challenge the appointment of Datuk Seri Gopal Sri Ram as lead prosecutor in her RM1.25 billion solar hybrid project graft trial.
High Court judge Datuk Ahmad Kamal Md Shahid dismissed the leave application in a decision delivered via email on Tuesday (Aug 30).
"Therefore, the preliminary objections raised by the Attorney General's Chambers (AGC) and the putative third respondent (Sri Ram) should be allowed. It is not necessary to deal with the merits of the application.
"Hence, this court has no jurisdiction to grant leave to hear the substantive judicial review application. The applicant (Rosmah)'s application for leave to commence judicial review proceedings is hereby dismissed," he said.
The wife of former premier Datuk Seri Najib Razak filed the judicial review application on June 24 where she is challenging the legality of Sri Ram's letters of appointment, or "fiats".
Among others, she is also seeking a declaration that her solar hybrid trial is null and void, and a stay order for the solar proceedings until the disposal of the judicial review.
The respondents in the matter — the Attorney General/Public Prosecutor, Government of Malaysia and Sri Ram — have all raised preliminary objections to Rosmah's application seeking leave to commence the proceedings.
In judicial review cases, leave or permission has to be granted for merits of the case to be heard.
Verdict in solar hybrid case to go on as scheduled on Sept 1
With the dismissal of the leave application, the verdict for the solar hybrid trial will go on as scheduled on Sept 1, when trial judge Mohamed Zaini Mazlan is set to deliver his decision.
Rosmah's similar application around the same issue had previously been dismissed by the Criminal High Court, Court of Appeal and Federal Court.
'One High Court cannot issue a judicial review against another High Court'
In this matter, senior federal counsel Shamsul Bolhassan represented the AGC while Sri Ram represented himself.
Rosmah was represented by Datuk Jagjit Singh and Datuk Akberdin Abdul Kader.
During the hearing of the leave application on Aug 11, Sri Ram argued that the High Court had already dismissed a similar application and stressed that one High Court cannot issue a judicial review against another High Court's decision.
Concurring with Sri Ram's argument, Ahmad Kamal said that Rosmah's application was not seeking to review a decision of an inferior court nor "decision in relation to the exercise of the public duty or function".
"I observe that the instant application is unprecedented in the context of the Malaysian judiciary where a party is actually seeking a High Court to [make a] judicial review [of] the decision of another High Court," he said.
'Application not made within time'
Shamsul had argued on Aug 11 that Rosmah's application was made out of time as a judicial review has to be made within three months when grounds for dissatisfaction first arise.
He added that in this instance, it should have been filed three months after she was charged in November 2018.
However, Rosmah's counsels countered that the application was made within time following the dismissal of the matter at the Federal Court in May 2022.
Ahmad Kamal noted that there was a delay in filing a judicial review application.
"I am of the view that an application for leave for judicial review made under Order 53 rule 3(6) of the Rules of Court 2012 (ROC) challenging Datuk Seri Gopal Sri Ram's fiat must be filled within three months from the date when the grounds of application first arose or when the decision was first communicated to the applicant," he said.
He noted that Rosmah was first charged on Nov 15, 2018 where Sri Ram appeared as lead prosecutor. A copy of the first fiat was communicated on April 8, 2021.
"This application for leave for judicial review was only filed by the applicant on June 24, 2022. This is clearly beyond the three-month time frame as stipulated under Order 53 rule 3(6) of the ROC. There had been delay on the part of the applicant in filing the application for leave for judicial review," he said.
He also added that there is "no material or cogent reason or single good reason" provided by Rosmah for the court to grant an extension of time in filing the application.
As for cost, the judge directed the counsels to discuss the matter via email.