A senior lawyer says it’s too late for the government to apply for a gag order on the royal addendum regarding Datuk Seri Najib Razak’s house arrest, as the matter has been in the public domain for nearly a year.
Datuk Seri Dr Jahaberdeen Mohamed Yunoos stated that sub judice is often regarded as outdated in modern legal practice, and that it would be better at this point to hold open public discussions.
His views come in the wake of Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said’s comments today that there should not be a gag order on the alleged royal addendum, as the matter was already in the public domain.
Their comments come after Senior Federal Counsel Shamsul Bolhassan said on Monday that the government would file for a gag and prohibitive order in the High Court to restrain the public from discussing Najib’s bid to compel the government to execute the alleged royal addendum, allowing him to serve the remainder of his jail term under house arrest.
However, Shamsul said that Najib’s lawyer, Tan Sri Shafee Abdullah, had objected when an oral application for the gag order was made.
Jahaberdeen said the issue of sub judice was archaic or outdated.
“The rule of sub judice was previously applied as there were concerns that the courts could be influenced by what was said outside of court. However, today, we have professional lawyers who are legally trained,” said Jahaberdeen.
“So, they are not at all influenced. They will only decide on the evidence and the matters before them.
“Also, if there is a gag order (in this case), it will drive the matter underground, which is not good. We need to have discussions so that there can be rebuttals and transparency.”
On Jan 6, Najib obtained leave at the Court of Appeal to begin judicial review proceedings to compel the government to execute a supplementary decree issued by the former Yang di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, allowing Najib 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.
Since then, there has been much discussion about the existence of a royal addendum, including a statement by Prime Minister Datuk Seri Anwar Ibrahim on Sunday, denying that the government had concealed the royal addendum.
Anwar said the addendum was sent directly to then Attorney-General Tan Sri Ahmad Terrirudin Mohd Salleh on Jan 29, 2024, and not to him or the Federal Territories Pardons Board members. He mentioned that after the new Agong, Sultan Ibrahim ascended the throne, the attorney-general then submitted it to Istana Negara.
Jahaberdeen explained that the judicial review was a hearing, not a trial, and therefore there are no concerns about witnesses being influenced.
“It’s a hearing that’s going to be based on affidavits, legal submissions, and consideration of affidavit evidence by the learned judge,” he said.
“There is no risk or threat of serious prejudice to the hearing. It is also clear that restraining the media and the public through a gag order is not necessary to ensure a fair hearing of the judicial review and judgment.”
In 2022, Najib was sentenced to 12 years in jail for graft and abuse of power for misappropriating RM42 million from SRC International Sdn Bhd. He was also fined RM210 million.
However, his 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.
In his leave application filed in the High Court on April 1, 2024, Najib claimed that former Yang di-Pertuan Agong, Al-Sultan Abdullah, during a Federal Territories Pardons Board meeting on Jan 29, 2024, had 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.
