Shafee, who is representing Najib, also wants Abu Bakar to recuse himself, stating that only Federal Court judges should be on the bench.

Instead, he suggested that a three-member bench could sit to hear the review bid as provided for under Section 74 of the Courts of Judicature Act 1964.

Under the section, 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.

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

It 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.

Chief Judge of Sabah and Sarawak Abdul Rahman Sebli is heading the five-member panel hearing Najib’s bid.

The others on the bench are Federal Court judges Vernon Ong, Rhodzariah Bujang and Nordin Hassan.

On Aug 23 last year, a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat affirmed Najib’s conviction and maintained his 12-year jail term and fine of RM210 million or, in default, an additional five years in prison.

Najib is asking for that decision to be set aside and for another Federal Court bench to rehear his appeal.

Shafee said Tengku Maimun 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” in Article 122 (2) of the Federal Constitution is vague.

He said leaving out the five judges who heard the appeal last August, there were still seven Federal Court judges who could sit to hear the review.

Stressing that Tengku Maimun should explain Abu Bakar’s selection, Shafee added: “She cannot say it is my discretion without giving a reason.”

Sithambaram said the Chief Justice has the power to select who she wants on the panel, adding that Shafee’s insinuation that the panel is biased is “objectionable and contemptuous”.

In response, Shafee said Najib’s legal team only found out that Abu Bakar would be a member of the bench this morning, and thus it did not have time to raise an objection earlier.

“I was only giving a suggestion, and the Chief Justice should praise me (for it),” he said.

He also said Najib is not asking for special treatment just because he is a former prime minister.

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