PUTRAJAYA, Aug 13 — Former prime minister Datuk Seri Najib Razak is now cleared to pursue his legal challenge over an addendum or “supplementary order” issued by the former King permitting him to serve the remainder of his reduced sentence under house arrest.

This follows the Federal Court's three-member bench unanimous decision to dismiss the Attorney General’s Chambers’ (AGC) appeal against a lower court decision to grant Najib leave to proceed with his court case seeking house arrest.

The Federal Court said the addendum order's existence has been previously confirmed following concessions made by the Attorney General in previous hearings despite its validity being inconclusive at this stage.

“Its status vis-a-vis its validity or whether its true needs to be ascertained at the substantive judicial review hearing which we do not consider it right or fair for us to express any view on this point at this stage.

“It is a point for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such arguments as is necessary on the law.

“Consequently we remit the case to the High Court for the hearing of substantive judicial review proceedings before a new judge,” Federal Court judge Datuk Zabariah Mohd Yusof said in delivering the panel’s decision.

The three-member Federal Court bench was led by Chief Judge of Malaya Tan Sri Hasnah Mohammed Hashim and included Zabariah as well as Datuk Hanipah Farikullah.

In delivering the Federal Court’s hour-long judgment, Zabariah said Najib — as the respondent — had demonstrated efforts to obtain information to confirm the details of the addendum dated January 29, 2024 through his solicitors as early as February 12 the same year.

The bench also noted Najib’s relentless attempt to obtain confirmation via the Prime Minister’s Office, the Ministry of Home Affairs, the Pardons Board and the Director-General of Legal Affairs of the PM’s Department, to which all were met with a dead end.

Apart from the relentless and repeated attempts to obtain the addendum by Najib, Zabariah said there is also the issue of the sensitive nature of the document and the strict protocol of the matters involving the Palace.

She said it was not until January this year, a letter — addressed to Najib’s son Datuk Muhammad Nizar — from the comptroller of the Sultan of Pahang’s royal household Datuk Ahmad Khirrizal Ab Rahman confirmed the existence of the addendum.

She said the focus is on the facts of the present appeal whether Najib has satisfied the requirements of Rule 7 of Rules of Court of Appeal 1994 (RCA) to admit the fresh evidence.

This fresh evidence sought to be admitted among others, included a copy of the disputed addendum itself obtained from the Pahang Palace.

“In relation to the requirement of “determining influence” under Rule 7(3A)(b); the issue is whether the addendum order would have a determining influence on the High Court decision.

“This court cannot for certain dismiss the addendum order as not forming part of the Pardons Order of the Pardons Board and neither can we, at this juncture for certain, say that it is.

“However, it is our view that, following the precise words in Rule 7(3A) (b) of the RCA, the addendum order, “if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court” in the judicial review application.

“Given the aforesaid, it is our judgment that the respondent has satisfied the elements under Rule 7 (3A) RCA to admit the addendum order as new evidence to be used at the substantive hearing of the judicial review application,” she said.

Despite the existence of the addendum having been confirmed by the AG himself, Zabariah emphasised that it neither translates into automatic admissibility of the same nor render it as valid.

In a 2-1 majority decision on January 6, a three-member appellate court bench remitted the case on Najib’s claim of the existence of an additional document — purportedly allowing him to serve the remainder of his six-year prison sentence under house arrest — to the High Court to be heard on its merits.

In his application for leave to seek judicial review filed on April 1, 2024, Najib claimed Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued the order during the January 29, 2024 meeting of the board, for the former to serve the remainder of his reduced sentence under house arrest.

Other reliefs sought by Najib include for the court to compel the respondents to execute said supplementary order.

On February 2, 2024, the Pardons Board halved Najib’s sentence to six years for misappropriating funds amounting to RM42 million, which means he could be released as early as August 23, 2028.

The Pardons Board said it had also decided to reduce his RM210 million fine to RM50 million, and his early release would be contingent on him paying this amount.