KUALA LUMPUR (May 2): The High Court on Thursday dismissed Tengku Datuk Zafrul Abdul Aziz's application to file an affidavit with regards to Datuk Seri Najib Razak's judicial review application to unearth an addendum to his pardon order that detailed he was to spend the remainder of his sentence under "house arrest".

Zafrul, who is minister of international trade and industry, had sought leave from the High Court on April 22 to file an affidavit to correct what he called “factual inaccuracies” in Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s affidavit in support of Najib’s bid.

High Court judge Datuk Amarjeet Singh Serjit Singh made the decision in chambers, but ruled that Zafrul could seek leave again if Najib was granted leave to have the merits of his judicial review application heard.

In judicial reviews, a petitioner has to apply for and obtain leave, or permission, from the court before the merits of the judicial review application are heard.

The decision was made following an objection made by Najib's counsel Tan Sri Muhammad Shafee Abdullah against Zafrul seeking leave to file his affidavit.

The Attorney General’s Chambers (AGC), led by Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi, did not object to Zafrul's application to file his affidavit, but noted that as this was at an ex-parte (involving one party only) stage, a party not part of the proceedings need not file any affidavit.

"However, if the affidavit is deemed to assist the court, then the court may allow it," Shamsul said.

Shafee and Shamsul told this to reporters after the proceedings that were conducted in chambers.

Zafrul's counsel Datuk Sunil Abraham, who was seen leaving the courtroom, declined to comment when approached.

Shafee, who appeared for Najib when asked why he was objecting to a fellow Cabinet minister filing an affidavit, said this was because Zafrul was not a party in the ex-parte matter.

“That is why, when the Malaysian Bar wanted to come in and intervene, the judge did not allow as they are not a party (in the matter). This is provided so.

“I also say that if he (Zafrul) puts in an affidavit, assuming that my deponent (Ahmad Zahid) disputes his affidavit, then I will put in another affidavit. There will be a clash of affidavits and then what happens to the ex-parte application?

“Anyway, there is no procedure in law or case law to admit or allow such a situation of a non-party to put in an affidavit. I suggest that if he wants to correct an affidavit, go and speak to Ahmad Zahid and say there is an error and please correct it. He (Ahmad Zahid) may do that, or he may not do that and instead say 'I am right as this actually happened',” he said.

When asked if Zafrul’s affidavit would be in support of Najib’s case, Shafee said he does not know as he is in the dark as to what Zafrul was going to say. “That is the best part. I don’t even know,” he said.

Shafee said Zafrul “can try to knock the door again” if leave for Najib's application is granted. “Whether the door is open or not (leave is not granted) is another story,” the senior lawyer added.

On April 1, Najib filed his application for a judicial review, seeking for a mandamus to force the authorities to produce the purported addendum order of the Federal Territories Pardons Board that allowed the former prime minister to serve the remainder of his reduced jail sentence, which has been halved from 12 years to six, under house arrest.

The AGC — representing the home minister, minister of law and institutional reform, the Pardons Board, the government and the Prisons Department — had objected to Najib’s application for leave, claiming it is a frivolous and vexatious application.

“Furthermore, there is no arguable case, and the application is speculative in nature," Shamsul said.

The pardon, which is the subject matter of the application, is considered "non-justiciable to a judicial review,” Shamsul said when the matter was argued last month.

Shamsul also said there is no express provision under Article 42 of the Federal Constitution or any written law that imposes legal duty on the part of the respondents to confirm the existence or produce the addendum order that was allegedly pronounced by the Agong, or the main order.

“Since there is no legal duty on the part of the respondents to confirm or produce any addendum order produced by the Agong to Najib, there is no omission which can attract the granting of a mandamus. Hence, the application framed by Najib is clearly frivolous and vexatious,” he said.

Najib’s application is akin to an attempt to a discovery application and a fishing expedition, he further said.

“Najib is trying to find evidence to prop up his case that he is entitled to house arrest due to an alleged reduction of the sentence contained in the purported addendum order. In other words, the application is clearly a fishing expedition to find evidence in favour of Najib.

“Since the application amounts to a fishing expedition, the discovery of documents should be refused by this court. Najib merely averred he obtained credible evidence to substantiate the addendum order, which does not exist,” he claimed.

Zahid had affirmed an affidavit dated April 9, claiming that Zafrul had visited his home in Kajang on Jan 30 and showed him a copy of the addendum order with the Agong’s seal on a handphone, leading Zahid to believe the order was valid.

However, Zafrul issued a media statement following Zahid’s affidavit revelation, alleging factual inaccuracies in it and said he would seek to correct it by asking his lawyers to file an affidavit, which led to the proceedings on Thursday.

Judge Amarjeet fixed June 5 on whether to grant leave to Najib’s application.

As reported on Tuesday, the Malaysian Bar had filed a separate judicial review application to challenge the Pardons Board’s decision to halve Najib’s jail sentence and to reduce the RM210 million fine imposed on him to RM50 million.

Najib was sentenced after being found guilty on seven graft charges involving RM42 million of SRC International Sdn Bhd funds. He started serving his sentence in August 2022 after the Federal Court affirmed his conviction on his final appeal. His attempt to seek a review on the apex court's decision was also dismissed by a majority seven-member apex court bench on March 30 last year.

Read also :
Zafrul seeks leave to file an affidavit in Najib's judicial review bid
Malaysian Bar challenges Pardons Board decision to reduce Najib’s sentence
Shafee asks why govt concealed former Agong's addendum order
Zahid confirms having sighted ex-Agong’s house arrest order for Najib in affidavit