PUTRAJAYA (Feb 25): The Federal Court on Tuesday has fixed March 24 for the Attorney General’s Chambers’ (AGC) application to challenge the Court of Appeal’s decision last month, which allows Datuk Seri Najib Razak to have the merits of the purported royal addendum to be heard. The purported addendum allegedly allows him to serve the remainder of his jail sentence under house arrest.
The date was fixed following case management before Federal Court deputy registrar Wan Fatimah Zaharah Wan Yussof.
Senior federal counsel Shamsul Bolhassan, who is also deputy head I of the Civil Division at the AGC, confirmed the hearing date on March 24 when contacted by The Edge.
Another case management date has been fixed on March 11 before the hearing date.
There are seven questions of law posed by the AGC for the apex court to consider, on whether Najib’s appeal could be heard on its merits or not.
At the Federal Court, leave (permission) has to be gained first before the merits of an appeal are to be heard, based on novel questions of the law, for the court to decide.
The questions of law sighted by The Edge touch on procedures with regards to the Court of Appeal Rules or Rules of the Court 2012, and among them are whether new evidence can be produced on a leave to appeal in judicial review, which will have legal implications on whether the decision by the Pardons Board can be challenged or otherwise.
The question is being asked following additional evidence being produced by Najib’s son, Datuk Nazir Najib, regarding the addendum, before the hearing of the appeal was heard.
Najib was originally sentenced to 12 years’ jail and fined RM210 million after the Federal Court had on Aug 23, 2022, upheld his conviction and sentence over the SRC International Sdn Bhd case.
However, following a pardon application by Najib, this was reduced to six years’ jail and a RM50 million fine, as announced in February last year. Later, the former prime minister and his lawyers claimed that there existed an addendum issued by the 16th Yang di Pertuan Agong, which allows Najib to serve the remainder of his sentence under house arrest.
AG files motion for leave to appeal earlier
On Feb 5, the AGC said it had filed a motion for leave to appeal with a certificate of urgency, for the Federal Court to decide on the purported royal addendum.
The filing of the motion is based on several important premises pertaining to the interpretation of the law and the difference in view between the High Court and the majority decision by the Court of Appeal, the AGC said.
“This matter results in the need to get certainty and finality in law from the Federal Court,” the AGC said. “The issue raised involves legal questions that are significant as well as having public interests that need to be determined by the highest court in the land,” the statement added.
Najib filed the judicial review on April 1, over the purported addendum, where he named the Federal Territory Pardon’s Board, the home minister, the law and institutional reform minister, the AG, the director general of the Legal Affairs Division of the Prime Minister’s Department, the commissioner general of the Prisons Department, and the federal government as respondents.
The former PM’s application was initially dismissed by the High Court on July 3, last year, when High Court judge Datuk Amarjeet Singh Serjit Singh ruled that the affidavits affirmed must contain facts that had been verified, but the affidavits that had been 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 Menteri Besar Datuk Seri Wan Rosdy Wan Ismail are hearsay, as the source of their information was (Investment, Trade and Industry Minister) Tengku Datuk Seri 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.
COA majority decision in allowing Najib’s appeal
On Jan 6, by a majority 2-1 decision, the Court of Appeal allowed Najib’s appeal, to have the full merits of his challenge for the production and implementation of the purported addendum to be heard. The appeal will be heard before a different High Court judge, Hayatul Akmal Abdul Aziz.
Datuk Azhahari Kamal Ramli and Datuk Seri Mohd Firuz Jaffril allowed Najib’s appeal, while Datuk Azizah Nawawi, who led the appellate bench, dissented.
Reading out the majority decision, Firuz said that in allowing Najib to adduce further evidence in the form of his son Nizar’s affidavit, the court also accepted that there was no rebuttal by the AG 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.
“The fact that there is no rebuttal affidavit from the respondent challenging the existence nor the authenticity of the addendum order is rather compelling (despite on Dec 5, 2024, informing this panel that they are seeking time to do so). We must state that at this stage, we are not concerned about the authenticity of the same. Rather, it is whether the addendum concerned exists or otherwise,” Firuz added.
While the case was reverted to Hayatul, the AG had sought for a gag and protective order barring the public from making public statements or accessing the court documents about the case.
That application for a gag and protective order has been fixed on April 28, as reported on Monday.