A senior lawyer says the Court of Appeal’s decision today regarding a supplementary addendum order for Datuk Seri Najib Razak’s house arrest shows that the Attorney-General’s Chambers (AG’s Chambers) has a lot to answer for.
This comes after the former prime minister successfully obtained leave to begin judicial review proceedings to compel the government to execute a supplementary decree issued by the former Yang di-Pertuan Agong, allowing him to serve his remaining prison sentence under house arrest. A three-member Court of Appeal bench also allowed an application by Najib to adduce new evidence when the merits of the case are heard in the High Court.
Commenting on the court’s decision today, former Malaysian Bar president Salim Bashir Bhaskaran said the court can only act on evidence presented before it.
“If there is not much of a challenge in respect of the existence of the addendum, as what I have been told, then the court has to rule in favour of Najib,” said Salim.
During the proceedings in the Court of Appeal today, a letter from the Majlis Kesultanan Pahang stating that Najib had been granted permission to serve the remainder of his jail sentence under house arrest was produced in court by Najib’s lawyer, Tan Sri Muhammad Shafee Abdullah.
The letter, with the Majlis Kesultanan Pahang letterhead, dated Jan 4, was addressed to Najib’s eldest son, Datuk Mohamad Nizar. It was signed off by Datuk Ahmad Khirrizal Ab Rahman, the Comptroller for the Royal Household of the Sultan of Pahang.
The letter stated that, on behalf of the Sultan of Pahang, the 16th Yang di-Pertuan Agong, it is affirmed that the royal addendum order exists and is valid.
“(In this case), there was not much challenge, and it is compelling why the AG’s Chambers have not come up with a reasoning to challenge the existence of the addendum,” said Salim.
Court of Appeal judge Datuk Seri Mohd Firuz Jaffril today questioned the AG’s Chambers’ lack of reply on whether the addendum truly exists or otherwise.
“There is no affidavit in reply on the addendum. There is nothing to say whether the addendum exists. There is no challenge (by the AG’s Chambers). I am very disturbed,” Mohd Firuz had said.
Mohd Firuz also noted that, at the last session, senior federal counsel Shamsul Bolhassan had given an undertaking to try to get verification from the Pahang palace over the matter, but nothing had been done in response.
Earlier, Shamsul, who is representing the government and other respondents in Najib’s appeal over the purported addendum, told the court that the addendum was never discussed or brought up during the Federal Territory Pardons Board’s meeting on Jan 29 last year.
Shamsul, who appeared for the respondents – Home Ministry, the Commissioner of the Prisons Department, the Attorney-General, the Federal Territory Pardons Board, the director-general of the Legal Affairs Department in the Prime Minister’s Department, and the Law Minister – said that the main order issued by the Federal Territories Pardons Board in February last year, which was to halve the former prime minister’s sentence, is the valid and final order.
Salim said the AG’s Chambers is an important stakeholder in the criminal justice system as they are the guardians of public interest.
“It is both compelling and disturbing that if such a document exists, why was it not disclosed?”
“So now the reputation of our justice system will be questioned. It will be brought into the limelight as to why this important document was not disclosed if it was within their (AG’s Chambers) knowledge.”
Salim said that although the addendum has nothing to do with Najib’s convictions, it was an important document in relation to his sentencing.
“The issue of whether it (the addendum) is deliberated inside or outside the Pardons Board meeting is also secondary.”
Asked if there could have been extraordinary circumstances that may have prevented the AG’s Chambers from making public the existence of the addendum, Salim’s reply was: “I don’t know.”
Salim noted that the entire fiasco and what transpired in relation to the addendum was “very disturbing.”
“This case is not just being closely watched by the local media, but even the international media are paying close attention,” he said.
“We have been going back and forth over this issue for over a year, forcing Najib’s lawyer (Shafee) to take up this matter and seek a mandamus order.
Najib’s prison sentence in his SRC International case was halved from 12 years to six, and his fine was reduced from RM210 million to RM50 million following an announcement by the Federal Territories Pardons Board on Feb 2 last year.
However, in his leave application filed in the High Court on April 1, 2024, Najib claimed that former Yang di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, during a Federal Territories Pardons Board meeting on Jan 29, 2024, issued a supplementary decree allowing him to serve the remainder of his reduced jail term under house arrest.
Najib said the Federal Territories Pardons Board had omitted to announce the terms of the supplementary decree and that the government was in contempt for not complying with the order.
Today, Mohd Firuz also ruled that Najib had fulfilled the criteria set out for the introduction of new evidence.
Mohd Firuz also stated that Najib had written to six of the seven respondents named in the appeal seeking to confirm the existence of the purported addendum, but received no reply from any of the parties.
Mohd Firuz said that after the High Court hearing in July last year, Najib had obtained a copy of the addendum from the Pahang ruler, who was the 16th Yang di-Pertuan Agong.
However, Mohd Firuz said the government had not provided any compelling rebuttal to the evidence adduced by Najib.
The six respondents were the Home Minister, the Prisons Commissioner General, the Attorney-General, the Federal Territories Pardons Board, the Law and Institutional Reform Minister, and the director-general of the Prime Minister’s Department’s legal affairs division. The federal government is the seventh respondent in the appeal.
The High Court last year dismissed Najib’s leave application, saying Najib was largely relying on hearsay evidence when he tried to adduce evidence seeking confirmation of the existence of the addendum order.
Separately, Umno president Datuk Seri Ahmad Zahid Hamidi, in a plea to the Yang di-Pertuan Agong, urged Sultan Ibrahim to use his prerogative under Articles 42(1) and (2) of the Federal Constitution to grant a full pardon to Najib.
In a statement this afternoon, the deputy prime minister also expressed gratitude to the Sultan of Pahang, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, for affirming the authenticity of the addendum order.
Meanwhile, Home Minister Datuk Seri Saifuddin Nasution Ismail, in a press conference this evening, said his ministry did not receive any directive to place Najib under house arrest. Saifuddin’s ministry had only received two documents regarding Najib’s case: the minutes of the Pardons Board meeting and the official Pardons Board order. Saifuddin stated that both documents did not mention “house arrest.”
