PUTRAJAYA (April 28): The full hearing of Datuk Seri Najib Razak's appeal on serving the rest of his sentence under house arrest will not be happening anytime soon, as the Federal Court has allowed Attorney General (AG) Datuk Mohd Dusuki Mokhtar to challenge it.
The Federal Court on Monday gave permission to hear Dusuki’s challenge against a Court of Appeal decision that allowed Najib’s appeal for a judicial review of the alleged house arrest addendum to be heard.
Chief Judge of Malaya Datuk Seri Hasnah Mohamed Hashim, in the unanimous decision, said the seven questions posed had passed the threshold for leave to be granted.
“The questions posed are novel and should be further ventilated. The bench will fix a hearing date for the merits of the AG’s appeal,” she said.
Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah were part of the bench in the unanimous decision.
The seven questions of law pertain to the introduction of further additional evidence with regards to proceedings at the Court of Appeal and also the AG’s power in judicial review proceedings.
In proceedings at the Federal Court, leave (permission) has to be gained before the full merits of the appeal is heard.
Hasnah, in her broad grounds, said the seven questions raised are of public importance and can guide the courts on how to handle the admission of additional evidence.
“The questions posed are also in relation to the role of the AG at the judicial review proceedings vis-à-vis whether the AG is duty bound under the law to confirm the existence (of the addendum) and supply of impugned documents and whether the AG has an obligation to defend or verify the evidence at the leave stage of judicial review proceedings.”
She said the majority Court of Appeal decision found that Najib's challenge to the existence and authenticity of the order was unconvincing, as there was no rebuttal evidence.
“The appellate court decision implies that the AG is required to take an adversarial stand to defend or contest by filing evidence at the leave stage in judicial review proceedings under Order 52 of the Rules of Court.
“On the issue which was raised by Najib’s lawyers that the AG would not be prejudiced as he is not prevented from arguing further in the substantive hearing at the High Court on the admission of the fresh and additional evidence, we disagree with such a stand taken by Najib's lawyers.”
“This is because by allowing the fresh and additional evidence by the Court of Appeal, the AG can no longer argue in the High Court on the admissibility of the fresh or additional evidence. As the High Court is bound by the decision of the Court of Appeal to admit the fresh or additional evidence, in that context the AG would certainly be prejudiced,” she said in granting leave.
Hearing date fixed in July; Shafee asks for five-member bench
The bench eyed an early hearing date — aiming for early July — with Hasnah explaining that Najib’s judicial review had been pending for a long time, so an early hearing was necessary, as she asked AG Datuk Mohd Dusuki Mokhtar for a suitable date.
Najib's lead counsel, Tan Sri Muhammad Shafee Abdullah, requested a five- or seven-member bench for the AG’s appeal.
His request prompted Hasnah to ask Shafee if he lacked confidence in the all-female bench. The senior lawyer responded that he did not, emphasising that the bench had called the case of public importance.
“Furthermore, the determination of the bench is not up to us,” Hasnah said, adding that the apex court bench could also be constrained by the number of judges available.
Although Hasnah didn't mention the specifics, The Edge had previously reported that nine apex court judges are retiring this year, with two having already retired: Tan Sri Harmindar Singh Dhaliwal and Datuk Abdul Karim Abdul Jalil.
Hasnah, Zabariah and Hanipah have received a six-month extension, while others, including Chief Justice Tun Tengku Maimun Tuan Mat, Court of Appeal President (CPA) Tan Sri Abang Iskandar Abang Hashim, and Federal Court judge Tan Sri Nalini Pathmanathan may retire unless their tenure is extended.
Chief Judge of Sabah and Sarawak (CJSS) Tan Sri Abdul Rahman Sebli is also set to retire in August after a six-month extension in January.
There should be 14 Federal Court judges, including the CJ, PCA, CJM and CJSS. Typically, the Chief Justice decides who sits on a bench for a case.
After some discussion, the apex court set the hearing dates for the AG's appeal on July 1 and 2.
“There should not be any postponement or adjournment unless there is [a] death or near death,” Hasnah added.
Shafee then replied that he was in attendance on Monday’s proceedings despite having some chest discomfort.
Besides Dusuki, those who appeared for the AG's Chambers (AGC) were senior federal counsels Shamsul Bolhassan, Ahmad Hanir Hambaly @ Arwi. Besides Shafee, Wan Mohammad Arfan Wan Othman appeared for Najib.
AG wants stay of pending High Court proceedings
Dusuki requested the apex court to order a stay on the hearing of Najib’s appeal regarding his addendum application.
Hasnah then asked for the dates of Najib’s substantive hearing, but Dusuki and Shafee replied that no dates had been fixed, although there was a hearing scheduled for Monday afternoon at 2:30pm about a gag order applied by the AGC.
They also mentioned a hearing on May 27 for the opposition MPs' — Opposition Leader Datuk Seri Hamzah Zainuddin, Terengganu Menteri Besar Datuk Seri Dr Ahmad Samsuri Mokhtar and former law minister Datuk Seri Takiyuddin Hassan — application for watching brief status. Hasnah then instructed Dusuki to make a formal application with the High Court.
The hearing of the AGC gag order is scheduled at 2.30pm before High Court judge Hayatul Akmal Abdul Aziz.
On January 6, the Court of Appeal in a majority decision allowed Najib’s appeal for the merits of his addendum challenge be heard back at the High Court.
As a result, Najib’s hearing was scheduled before Hayatul Akmal. Earlier, on July 3, Judge Amarjeet Singh Serjit Singh had refused to grant leave for Najib’s application to be heard, leading to the former PM’s appeal at the Court of Appeal.
Najib disappointed with Federal Court decision to hear AG appeal
Shafee in a press conference held later in the afternoon, said Najib was disappointed with the court’s decision because it would mean further delays.
“He has been waiting for a year and four months.”
“It is very clear that not just the 16th King [Sultan of Pahang] had explained the existence of the addendum that enabled him to undergo house arrest. We also know that the prime minister [Datuk Seri Anwar Ibrahim] had clearly stated in two speeches that the addendum exists but it is not with him, but someone else. He had also explained the [previous] AG had gotten it first,” Shafee said.
“So if the addendum exists, Najib and I do not understand why there is a delay to it. Authenticity is another issue.
“Hiding the addendum is not legal,” he said at the press conference.
Najib alleged that there is a purported addendum issued by the 16th Yang di Pertuan Agong Al Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah that allows Najib to serve the remainder of his jail sentence — which he has served since Aug 23, 2022 — under house arrest.
The former Pekan MP was given a pardon which reduced his 12-year jail sentence and RM210 million fine to six years jail and RM50 million fine, after being found guilty over the SRC International Sdn Bhd fiasco.