KUALA LUMPUR: The royal addendum order that would have allowed Datuk Seri Najib Razak to serve his prison time under house arrest was never decided at the 61st Pardons Board meeting, the same meeting that granted the former prime minister a discount on his sentence in the RM42mil SRC International Sdn Bhd, the High Court heard on Monday (Nov 24).
Senior Federal Counsel Shamsul Bolhassan, who appeared for the respondent, said the imposition of house arrest, as reflected in the addendum order, was not deliberated in the said meeting that took place on Jan 29 last year.
"Based on the minutes of the meeting, only one decision was made during that meeting, namely the Yang di-Pertuan Agong's 50% decision," he said in his submissions here on Monday.
The "50% decision" refers to the decision by the Pardons Board that commuted Najib's jail term in the SRC International case from 12 years to six.
His fine was also reduced from RM210mil to RM50mil. If the fine is not paid, a year will be added to the jail term, and the release date will then be on Aug 23, 2029.
According to SFC Shamsul, if the house arrest was truly intended by the Yang di-Pertuan Agong, such a decision ought to have been deliberated and resolved at the meeting with the presence of the Yang di-Pertuan Agong, in accordance with the prescribed procedural process under Article 42(8) of the Federal Constitution.
"However, the addendum order was not decided upon during the meeting and it's issuance outside the required procedural framework calls into question its validity under the Constitution," he added.
As such, the addendum order was not "legally enforceable".
SFC Shamsul also contended that the decision that was deliberated in the meeting, which was presided over by the Yang di-Pertuan Agong under Article 42 of the Constitution, was non-justiciable.
Meanwhile, Najib's lawyer Tan Sri Muhammad Shafee Abdullah submitted that they had more than proven to the courts that the addendum order was valid and that it existed.
He said the Attorney General's Chambers had a "history of denial" when it comes to the addendum order and they should be compelled to give a copy of the order.
"It has been more than a year (since the order was issued), this addendum order has not been enforced. My client should be under house arrest.
"Justice is finished, now it is only mercy," Muhammad Shafee said.
Justice Alice Loke then fixed 8am on Jan 5 to deliver the decision in the judicial review application.
"I think I should take the Christmas holidays to deliberate and mull over this," she said.
On Aug 13, the Federal Court upheld a 2-1 majority decision by the Court of Appeal that instructed for Najib's judicial review application on the addendum order be remitted back to the High Court for a full hearing.
In his application, Najib 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), the director-general of the legal affairs at the Prime Minister's Department and the government as the first until seventh respondents, respectively.
In the notice of application, Najib sought a mandamus order that all of the respondents or one of them answer and verify the existence of the addendum order dated Jan 29, 2024.
Najib is currently serving the sentence imposed on him after the High Court found him guilty of abuse of power, criminal breach of trust and money laundering in relation to RM42mil that had been siphoned from SRC International, a former 1MBD subsidiary.
In February, last year, the Pardons Board reduced his initial 12-year jail sentence and RM210mil fine to six years and a RM50mil fine.
