PETALING JAYA: A gag order on the purported addendum that allows former prime minister Datuk Seri Najib Razak to serve the remainder of his jail sentence under house arrest will only fuel allegations of government interference, say lawyers.
Lawyer Mohamed Haniff Khatri Abdulla is of the view that a gag order is unnecessary, saying that it has been confirmed that the addendum is genuine and it is the public’s right to discuss and inquire answers on the issue.
“What remains in the court will be legal matters – how do you interpret Articles 40 and 42 (of the Federal Constitution). There are no factual issues to determine,” he said.
“Academicians and lawyers have the right to give their views.
“At the end of the day, the government and Najib’s lawyers will be making submissions, so the courts will ultimately decide what is the interpretation of the law.”
Article 40 in the Federal Constitution stipulates the Yang di-Pertuan Agong’s functions to act on advice, while Article 42 stipulates the King’s prerogative in granting pardons, reprieves and respites.
On Jan 6, a letter from Majlis Kesultanan Pahang was submitted to the Court of Appeal, stating that His Royal Highness the Sultan of Pahang had indeed given the order for Najib to serve his remaining jail sentence under house arrest.
On that day, the Court of Appeal allowed Najib’s appeal for leave to initiate judicial review over the existence of the royal addendum.
The case is then remitted back to the High Court for a substantive hearing.
Lawyer Nizam Bashir Abdul Kariem Bashir explained that a gag order is legally known as an “injunction against public disclosure” or a “super injunction” when it carries an additional order that prevents the reporting of the existence of the injunction itself.
Nizam Bashir said the fundamental philosophy on court proceedings is that it is based on the common law concept of open justice.
“The central tenet of open justice is simply that court proceedings should be widely accessible and subject to discussions as well as comments,” he said.
He added that when a gag order was sought, it obstructed open justice and by extension, could undermine the rule of law and democratic governance.
“In short, a gag order should be truly exceptional. In the present case, there does not appear to be any compelling reason for there to be a gag order,” he said.
Nizam Bashir also pointed out that the Pahang Palace has confirmed that the addendum exists.
Pasir Gudang MP Hassan Karim, who is a lawyer by profession, said he disagreed with the gag order on the royal addendum that purportedly allows Najib to serve the remainder of his prison sentence at home.
“Why need a gag order? Malaysia is a democratic country.
“Let the people and press have space to air their views and opinions,” he said.
In the judicial review case, Najib filed the application for leave on April 1, 2024.
He named the Home Minister, the Commissioner General of Prisons, the Attorney General, the Federal Territories Pardons Board, the Minister in the Prime Minister’s Department (Law and Institutional Reform), director-general of the legal affairs at the Prime Minister’s Department and the government as the first until the seventh respondents, respectively.
In the notice of application, Najib sought a mandamus order that all of the respondents or one of them to answer and verify the existence of the addendum order dated Jan 29, 2024.
On July 4, 2024, the Kuala Lumpur High Court dismissed Najib’s application for leave, citing hearsay in supporting affidavits, prompting Najib to appeal against the decision.
