This is because the Courts of Judicature Act 1964 stipulates that the appellate court can hear a criminal appeal if it is a decision made by the High Court “in the exercise of its original jurisdiction.”
In written submissions filed this week, the prosecution said the judgment handed down by Justice Zaini Mazlan in respect of the applications which are the subject matter of the appeals came within the definition of “decision” as defined in Section 3 of the Act.
Section 3 defines the term “decision” as any judgment, sentence or order made by the High Court, but does not include a ruling made in the course of a trial or which does not finally dispose of the rights of the parties.
The prosecution added that a Federal Court in 2020 had also entertained an appeal on a recusal matter in the case of Public Prosecutor v Tengku Adnan Tengku Mansor.
“It is reasonable to assume that the Federal Court knows what is and what is not appealable. By entertaining the appeal without commenting adversely on its jurisdiction to do so, one can conclude that recusal matters are appealable,” it said.
The prosecution also said the recusal appeals ought to be heard and decided prior to the trial to avoid wastage of time and costs.
Last month, a three-member Court of Appeal bench chaired by Justice Hanipah Farikullah instructed the prosecution and defence to file additional submissions to address whether the court had jurisdiction to hear the matter.
The trial is scheduled to be heard by Zaini in the Kuala Lumpur High Court for 15 days between May and September next year.
Zaini was also the judge who heard and convicted Rosmah in her RM1.25 billion solar hybrid energy project corruption trial earlier this year.
On Dec 14 last year, Zaini dismissed Rosmah’s application, saying that, as a matter of law, he was required to consider each case separately and independently.
Rosmah, the wife of former prime minister Najib Razak, had called for Zaini to recuse himself, claiming that statements and exhibits tendered before the court in her earlier corruption case could directly or indirectly influence him in the current case.
On April 25 this year, Zaini dismissed Rosmah’s second recusal application premised on largely similar grounds saying it was res judicata as Rosmah had made an identical application in her solar energy corruption trial which was also dismissed.
Rosmah is facing 12 money laundering charges and five counts of failure to declare her income to the Inland Revenue Board (LHDN).
She is accused of committing the offences between Dec 4, 2013 and June 8, 2017.