PUTRAJAYA (July 2): Attorney General Tan Sri Mohd Dusuki Mokhtar has said that former prime minister Datuk Seri Najib Razak or his son Datuk Mohd Nizar Najib should have produced the purported royal addendum that allegedly allows Najib to serve the remainder of his jail sentence under house arrest during High Court proceedings.
Dusuki, who appeared at the Federal Court on Wednesday in the AG’s appeal against the Court of Appeal’s majority decision in January — that had ordered for the merits of Najib’s addendum application to be heard at the High Court — had claimed that Najib or Nizar had not acted in a due diligent manner to produce the purported document.
The AG said the purported addendum was produced a day before the Court of Appeal hearing date in December 2024.
“He (Najib) or Nizar should have given more effort on a regular basis to show or produce the addendum at the High Court hearing before the court made the decision in July. However, Nizar only produced the purported addendum order a day before the appellate court was due to hear Najib’s appeal in December.
“The said addendum was in the possession of the Pahang ruler. They (Najib or Nizar) should have sorted it out and got the said copy. It is up to them to do all the effort, because the Pahang ruler had imposed an embargo on getting it. The appellant had failed to do so at the High Court,” Dusuki said.
Najib, the AG said, was allowed to receive visitors, and he is allowed to use facilities in prison.
Dusuki alleges that the former prime minister did not show any evidence that he was not allowed to use the facilities or contact anybody.
“Najib is allowed to use facilities. He never said he was restricted or was not allowed to communicate. The fact they failed to obtain the addendum order, and as it was produced a day before the Court of Appeal hearing, shows they did not show due diligence. Due diligence was not exercised by the appellant (Najib),” he said.
The AG said if the appellate court accepted the document or addendum as evidence, then the veracity or authenticity of the evidence should have been followed.
Here, he added there was no proper seal of the Yang di-Pertuan Agong (when the Pahang Sultan was Agong) and no signature by him although the purported document showed it was addressed to the then-AG Tan Sri Ahmad Terrirudin Mohd Salleh.
“Hence, the majority Court of Appeal decision was wrong in accepting or using the principle of Ladd vs Marshall to admit it as evidence, whereas we already have the Rules of the Court of Appeal which imposes a higher threshold,” Dusuki said.
“The AG’s Chambers is not duty bound to say anything (or prove its existence). They (Najib and Nizar) are the ones who filed the application, and they are required to prove it,” he said.
The AG argued that the Rules of the Court of Appeal provide a stringent threshold for new evidence to be admitted, and this should have been adopted or used as guidance by the Court of Appeal, instead of applying the Ladd vs Marshall case, which is based on common law.
Dusuki said the High Court was right to dismiss Najib’s application for leave (permission) to have the merits of the application heard.
On Jan 6, in a two-to-one majority, the appellate court allowed Najib’s appeal for the merits of the matter to be heard at the High Court. However, the AG sought leave to appeal before the Federal Court, and this was granted on April 28, with seven questions of law to be decided.
Chief Judge of Malaya Tan Sri Hasnah Mohammed Hashim led a three-member bench that also comprised Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah in hearing the AG’s appeal.
Shafee: Ahmad Terrirudin has access to addendum
Shafee in reply said that former AG Ahmad Terrirudin, who is now a Federal Court judge, has access to the addendum as the Agong had addressed it to him.
“The copy was not given to the Prisons Department and was addressed to the then AG (Terrirudin). He should have clarified the matter at the High Court when the application had been made, but he did not,” the senior lawyer said.
Shafee then read portions of the purported addendum, which was written in palace language and was addressed to the then-AG.
It is to be noted that Ahmad Terrirudin became a Federal Court judge last November.
Shafee said that the then-AG should have provided the assistance to not only comply with the main order (to reduce the sentence) but also apply the addendum order which allows Najib to serve the remainder of his jail sentence under house arrest.
However, Shafee said this was not done, and Najib was right to file the application to have the respondents produce the said addendum.
Najib was sentenced to 12 years’ jail and fined RM210 million after the Federal Court upheld his conviction with regard to the SRC International Sdn Bhd case. This, however, was reduced by the Federal Territory Pardons Board on Jan 29, 2024, to six years’ jail and a RM50 million fine.
However, the matter with regard to the purported addendum only came up on April 1.
The hearing on the AG’s appeal will resume on July 9.