PUTRAJAYA, Jan 19 — Defence lawyer Tan Sri Muhammad Shafee Abdullah today objected to a Court of Appeal judge being part of a five-member Federal Court bench hearing Datuk Seri Najib Razak's bid to have his conviction and 12 years’ jail sentence for the misappropriation of RM42 million of SRC International Sdn Bhd fund reviewed.

At the onset of today's hearing, Muhammad Shafee said he wanted Court of Appeal judge Datuk Abu Bakar Jais to recuse himself, stating that only Federal Court judges should be on the bench.

Citing Section 74 of the Courts of Judicature Act, Muhammad Shafee said every proceeding in the Federal Court shall be heard and disposed of by three judges or such greater uneven number of judges as the Chief Justice may in any particular case determine.

He then proposed for a three-member bench to sit to hear the review bid since the exclusion of Abu Bakar would meant an even number of judges on the panel.

Apart from Abu Bakar, Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli led the five-member panel; with Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzariah Bujang and Datuk Nordin Hassan on the bench.

Ad hoc prosecutor Datuk V. Sithambaram objected to Muhammad Shafee’s preliminary objection, noting that such an arrangement to co-opt a Court of Appeal judge was allowed under Article 122(2) of the Federal Constitution.

Article 122(2) states that a judge of the Court of Appeal other than the President of the Court of Appeal may sit as a judge of the Federal Court where the Chief Justice considers that the interests of justice so require, and the judge shall be nominated for the purpose — as occasion requires — by the Chief Justice.

Excluding the five judges who formed the first quorum that affirmed Najib's conviction and sentence meted out by the High Court, seven other judges were eligible to sit in today's hearing out of a total 12 Federal Court judges.

Of the four present, three other Federal Court judges not selected were Datuk Harmindar Singh Dhaliwal, Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim.

Muhammad Shafee further argued that Chief Justice Tun Tengku Maimun Tuan Mat should not be allowed to decide who sits on the panel as her own participation in the appeal is one of the grounds put forward by Najib as justifying a rehearing of the appeal.

He also said the term 'in the interest of justice' as per Article 122(2) is vague.

"The Chief Justice cannot willingly say I want this judge come for this court, she cannot say it is my discretion without giving reason.

"I am not doing quorum shopping, no. These three (aforementioned Federal Court judge names) apart from your four Lordships here constitutes seven.

"We have to know why the Chief Justice, and I don't meant disrespect, choose to 'discriminate' these three names and would rather go to the Court of Appeal to pick a candidate," he said, adding that all three Federal Court judges were more than qualified to sit on the bench.

Sithambaram responded by saying there was nothing before the court to show mala fide otherwise over Abu Bakar's selection as a panel judge.

"We have our Federal Constitution and we, the prosecution, say it is rightly invoked and the appeal can proceed," he insisted.