Najib Razak's lead counsel has raised an objection against one of the sitting judges in the former prime minister's review application over his conviction in the RM42 million SRC International case.
Muhammad Shafee Abdullah said justice Abu Bakar Jais, who is a Court of Appeal judge, should not be present on the panel.
He said Abu Bakar should recuse himself, adding that only Federal Court judges should be on the bench.
Shafee said according to Section 74 of the Courts of Judicature Act 1974, the composition of the Federal Court judges must consist of all Federal Court judges.
"This is nothing personal as I have known justice Abu Bakar since service days," he added.
Lead prosecutor V Sithambaram countered that such an arrangement to co-opt a Court of Appeal judge is allowed under Article 122 (2) of the Federal Constitution.
He also said the objection against the judge must show a real danger of bias.
Abu Bakar is part of a five-judge panel chaired by Chief Judge of Sabah and Sarawak Abdul Rahman Sebli to hear Najib's review application.
The other judges on the panel are Federal Court judges Vernon Ong Lam Kiat, Rhodzariah Bujang and Nordin Hassan.
Najib is seeking to overturn the decision by a five-man Federal Court bench led by Chief Justice Tengku Maimun Tuan Mat on Aug 23 last year, upholding his conviction, 12-year jail sentence and fine for the misappropriation of RM42 million in SRC International funds.
Sithambaran further submitted that Tengku Maimun had fulfilled the requirements of Article 122 of the Federal Constitution with the selection of Abu Bakar on the panel.
The defence's bid to shape the panel, Sithambaram said, was "highly offensive and contemptuous".
"We sitting at the Bar cannot tell the court how they come up with the panel. That's contemptious," Sithambaram said.
He also said that the defence should not seek any special treatment over the proceedings.
Meanwhile, Shafee said Tengku Maimun had not shown any reason for selecting Abu Bakar to sit on the panel.
He said there were seven Federal Court judges at present who could have been chosen.