KUALA LUMPUR (Jan 13): The government on Monday wants to apply for a gag and prohibitive order to refrain the public from discussing issues pertaining to a purported addendum allowing former prime minister Datuk Seri Najib Razak to serve the remainder of his prison sentence under house arrest, as it involves sensitive matters.
This was related to the press by senior federal counsel Shamsul Bolhassan, who appeared with federal counsel Nurhafizah Azizan, representing the Federal Territory Pardons Board, the government, and five other respondents.
However, this was objected to by Najib's lawyer Tan Sri Muhammad Shafee Abdullah, who told new presiding judge Hayatul Akmal Abdul Aziz, in chambers, that the matter had been discussed in the open, including by Prime Minister Datuk Seri Anwar Ibrahim, and thus, the “horses have bolted from the barn”.
Following that, Hayatul Akmal told Shamsul to file a formal application for the prohibitive and gag order by Jan 20.
The government indicated that it is also objecting to the watching brief held by Tan Sri Azhar Azizan Harun, Datuk Seri Takiyuddin Hassan and Datuk Seri Zulkifli Noordin, for three Perikatan Nasional (PN) Members of Parliament.
The objection from the government stems from the three MPs, as well as Shafee, questioning the proposed gag and prohibitive order sought by Shamsul, since the gag order might undermine the MPs’ ability to do their work.
Azhar said that since this matter was also discussed in Parliament and the PM had responded during question time, the matter should not be barred.
They appear for opposition leader Datuk Seri Hamzah Zainuddin, PN Whip Datuk Seri Ronald Kiandee, and Terengganu Menteri Besar Datuk Seri Ahmad Samsuri Mokhtar from PAS.
Azhar and Takiyuddin said they would file a formal application to the court by Jan 27, to hold a watching brief for the three MPs.
Shafee also indicated that he would be filing an additional affidavit relating to the latest development from the past few days.
Hayatul Akmal instructed parties to submit their replies to the merits of the addendum application by March 6, and fixed March 11 as case management via e-review.
COA granted leave last week
On Jan 6, the Court of Appeal (COA) through a 2-1 majority granted leave for Najib’s judicial review application, to compel the government to produce the purported addendum dated Jan 29, 2024, allowing him to serve the sentence under house arrest and for the respondents to comply with the order.
The COA bench directed the matter to be heard before a new judge, which is Hayatul Akmal, following the earlier High Court decision by Datuk Amarjeet Singh Serjit Singh which had dismissed Najib's application for leave due to it being hearsay.
In the majority decision, COA judge Datuk Seri Mohd Firuz Jaffril said the court also accepted that there was no rebuttal by the attorney general over the existence of the addendum, and hence, what was alleged and found by the High Court earlier, of it (the addendum) being hearsay, could no longer stand.
“We are therefore of the view that Najib had complied with the principles propounded in Ladd vs Marshall (where the evidence was not available then, reasonable due diligence was exercised, and it would influence the result of the case),” Firuz had said, adding that as there was no rebuttal, this meant that the appellate court could not ignore its (purported) existence.
Najib had named the home minister, the commissioner general of the Prisons Department, the attorney general, the Federal Territory Pardons Board, the de facto law and institutional reform minister, the director general of the Legal Affairs Division at the Prime Minister’s Department, and the government, as respondents.
On July 3 last year, Amarjeet in his decision had said that the affidavits affirmed must contain facts that had been verified, but the affidavits submitted before the High Court contained bare statements without mentioning the source.
“The averments by (Deputy Prime Minister) Datuk Seri Ahmad Zahid Hamidi and Pahang MB Datuk Seri Wan Rosdy Wan Ismail are hearsay, as the source of their information was Minister of International Trade and Industry Datuk Seri Tengku Zafrul Abdul Aziz.
“The crucial question is whether hearsay can be referred to [in] an affidavit verifying the facts. I have no doubt that the affidavits filed by Najib, Ahmad Zahid, and Wan Rosdy, concerning the addendum, are hearsay,” the High Court judge had ruled.