PUTRAJAYA (July 9): The attorney general (AG) has admitted the existence of a document (addendum) which purportedly orders imprisoned former prime minister Datuk Seri Najib Razak to serve the remainder of his jail term under house arrest, but is questioning the procedure or manner of Najib’s counsel in adducing the evidence.

Senior federal counsel Shamsul Bolhassan on Wednesday told the Federal Court that at the last hearing last week, AG Tan Sri Mohd Dusuki Mokhtar conceded its existence.

“Despite the concession, the Attorney General’s Chambers (AGC) is questioning the procedure utilised by Najib’s counsel to produce the fresh evidence. These need to be adhered to,” he said, adding that the Chambers stood by their written submissions that the document (addendum) should not have been admitted.

Shamsul was responding to questions from the bench, led by Chief Judge of Malaya Tan Sri Hasnah Mohamed Hashim, that also comprises of Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah, who asked the AGC’s position on whether the document (addendum) exists or not.

To this, Shamsul admitted that they concede and do not dispute the addendum’s existence based on Dusuki’s response last week, and the bench indicated that if this was so, then it was no longer an issue for its existence.

“If this fresh evidence is that the document (addendum) exists, it would entirely be academic for us to answer the issues or questions raised,” Hasnah and Zabariah added.

This led to the bench giving the AGC and Shamsul a short adjournment for them to clarify on this, and on returning, Shamsul reiterated that they are questioning the manner how it was adduced.

It is to be noted that since last week, Hasnah and Zabariah have been performing the tasks and responsibilities of the Chief Justice and president of the Court of Appeal respectively, following the retirement of Tun Tengku Maimun Tuan Mat and Tan Sri Abang Iskandar Abang Hashim.

A check with what the AG said last week, when one of the three judges had asked him “You’re not disputing the existence of the document (addendum)?”, Dusuki had replied, “Yeah! That exists. We did not deny that. We did not say in our submission, or everywhere or anywhere that we deny its existence. We didn’t. We haven’t.”

As Shamsul had told the bench, the AGC was questioning the manner the evidence was produced. Dusuki had last week said the Court of Appeal had erred, as it adopted a wrong test to admit the document (addendum).

“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 impose a higher threshold,” Dusuki had said. 

During proceedings on Wednesday, as the bench were continuing to ask on the existence of the addendum and Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah replied that Dusuki had admitted it himself, Shamsul reiterated that the AGC’s stand is over the validity of the document (for its implementation).

This is because the document signed by the 16th Yang di Pertuan Agong Al Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah was apparently given to then-AG Tan Sri Ahmad Terrirudin Mohd Salleh after the Federal Territory Pardons Board’s meeting on July 29 last year, and hence, the notion of the addendum.

Earlier, Shafee questioned Ahmad Terrirudin’s candour in not revealing the existence of the addendum at the High Court stage, during the initial judicial review application.

Shafee said Ahmad Terrirudin as the then-AG should have revealed the document, and not hidden its existence, as it is a material fact.

“My client is not directly or indirectly challenging the decision of the Pardons Board. The Pardons Board did not make the decision, as it advises the Agong.

“The respondent (then AG) is guilty of not responding to the decree of the Agong. The idea of a public functionary duty is that you have to abide by the decree of the Agong. This is the first time a decree is not carried out.

“If the addendum had been executed, Najib would be serving the remainder of his sentence at his house, and not in prison,” Shafee added.

He said that they (Najib and Shafee’s defence counsel team) are doing this to ensure that history does not repeat itself (in not abiding by the decree).

After hearing all the submissions, Hasnah adjourned the proceedings to a date to be fixed for decision.

The hearing on Wednesday follows the AG’s appeal over seven questions of law following the Court of Appeal’s majority decision on Jan 6, that allowed leave (permission) for Najib’s challenge on the existence of the addendum to be heard on its merits at the High Court.

However, the AG sought leave to appeal before the Federal Court, and this was granted on April 28, resulting in this hearing.

Besides this addendum hearing, Shafee, on behalf of Najib, has filed to cite Ahmad Terriruddin, who is now a Federal Court judge, for contempt of court over not disclosing the addendum.

Najib is seeking leave from the KL High Court to show-cause the former AG. Meanwhile, the AGC has sought to intervene in the proceedings scheduled next month.

Read also:
Najib or his son Nizar should have produced said addendum copy earlier at High Court, says AG 
AG gets nod from Federal Court to challenge Najib’s house arrest bid
AG’s Chambers considering setting aside Najib’s contempt application against ex-AG Terrirudin