PUTRAJAYA (July 1): The Federal Court has dismissed a preliminary objection made by Datuk Seri Najib Razak’s lawyers, who had cited that the seven questions of law posed by Attorney General Tan Sri Mohd Dusuki Mokhtar, which would be heard on its merits, are hypothetical, not brought up in the court below, and are not relevant to the AG’s appeal with regards to the former prime minister’s alleged addendum.
The alleged addendum purportedly allows Najib to serve his remaining jail sentence under house arrest.
The three-member bench, led by Chief Judge of Malaya (CJM) Tan Sri Hasnah Mohammed Hashim, ruled that all seven questions posed by the AG are relevant and merit further explanation or ventilation before the apex court.
Hasnah, who sat with Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah in the unanimous decision, said on the first three questions, Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah had said that these questions with regards to adducing further evidence had not been raised in the High Court or the Court of Appeal (COA) in their original or appellate jurisdiction.
She said Najib’s lawyers had also said the three questions are academic and hypothetical, and devoid of factual basis.
“In our view, the three questions relate to the adducing of fresh evidence and the principle behind it [are relevant] …. We admit that it did not arise at the High Court because the application to adduce fresh evidence only arose at the COA,” Hasnah added.
Not an attempt to sidestep duty on public authorities
On the fourth to sixth questions, the CJM said that Shafee had said that the questions were an attempt by the AG to sidestep the duty imposed on public authorities through the AG during judicial proceedings.
“The bench is concerned whether such a duty can be imposed on the AG at the leave stage of the judicial review proceedings,” she said.
In this matter, the AG represents the Minister of Law and Institutional Reform, the Prisons Department, the Federal Territory Pardons Board, the director general of the Legal Affairs Division at the Prime Minister’s Department, and the government.
On the issue of the final question, Hasnah said it relates to justiciability of pardons.
“The issue here is whether the subject matter, mainly the addendum, is a subject matter that is justiciable to be reviewed by this court. This question is relevant to Article 42 of the Federal Constitution.
“Hence, it is our considered view that all the questions are either determined by the High Court or the COA in the exercise of their original or appellate jurisdiction, which is within the jurisdiction of Section 96A of the Courts of Judicature Act 1964 for the Federal Court to hear.
“Neither are they academic nor hypothetical in nature, which is devoid of factual basis as submitted by the respondent.
“We therefore unanimously dismiss the preliminary objection,” Hasnah said.
Article 42 concerns the power to grant a pardon.
As it was running late, the bench decided to hear the AG’s appeal on Wednesday (July 2) morning. Originally, the hearing for the AG’s appeal had been fixed for Tuesday and Wednesday.
Besides Dusuki, senior federal counsels Shamsul Bolhassan and Ahmad Hanir Hambaly appeared for the AG’s Chambers in the AG’s appeal.
In January this year, the COA had, in a majority decision, allowed leave for the merits of Najib’s judicial review to be heard in full at the High Court, to compel the authorities to produce and implement the addendum.
That resulted in the AG’s appeal before the apex court.