KUALA LUMPUR (July 3): The High Court on Wednesday dismissed former prime minister Datuk Seri Najib Razak's bid to serve the remainder of his sentence under house arrest.
All the affidavits filed — two by Najib and one each by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi and Pahang Menteri Besar Datuk Seri Wan Rosdy Wan Ismail — are mere hearsay, judge Datuk Amarjeet Singh Serjit Singh said.
Amarjeet ruled that the application for judicial review failed to pass the threshold for the court to grant leave or the mandamus order sought by Najib to compel the authorities to comply with his demand.
In judicial review applications, leave or permission has to be gained from the court first before the merits or substantive matter of an application can be heard, to ensure that the application is not frivolous or vexatious, or an abuse of the court process.
The judge said it is trite that the affidavits affirmed must contain facts that had been verified, and he said the two affidavits filed by Najib contain bare statements without mentioning the source.
He noted that Ahmad Zahid and Wan Rosdy in their affirmed affidavits said the source of the information on the existence of the addendum order was Minister of Investment, Trade and Industry Tengku Datuk Seri Zafrul Abdul Aziz.
“The averments by Ahmad Zahid and Wan Rosdy are hearsay as the source of their information was Tengku Zafrul. The crucial question is whether hearsay can be referred to [in] an affidavit verifying the facts. I have no doubt that the ... affidavits filed by Najib, Ahmad Zahid and Wan Rosdy concerning the addendum are hearsay,” the judge said.
Amarjeet also ruled that Ahmad Zahid’s affirmation that Tengku Zafrul apparently showed the purported addendum order on his (Tengku Zafrul’s) handphone cannot be considered as secondary evidence under the Evidence Act.
“In this case, and in view [that] the subject matter, the addendum order or its existence, are hearsay evidence [and thus are] to be disregarded in determining whether leave should be granted or otherwise,” the judge said.
No explanation why Najib did not approach Tengku Zafrul
Amarjeet said the evidence produced before the court must meet the minimum threshold of reliability, and in this case, Najib relied on the source, which was Tengku Zafrul, but the source did not affirm any affidavit.
“There is no explanation forthcoming as to this fact. The source was available but not used. Tengku Zafrul had attempted to file an affidavit, but this court denied him as the law does not allow him to do so at the leave stage,” he said.
It is to be noted that Najib, through his lawyers, had objected to Tengku Zafrul’s application to affirm an affidavit to “correct some inaccuracies” in Ahmad Zahid’s affidavit.
Amarjeet said that as the court held the four affidavits are all hearsay, as such there is no arguable case for further investigation at the substantive stage (for merits of Najib’s application to be heard).
The court also noted there is no provision that imposes a legal duty for the Pardons Board to reply to Najib’s letter.
Amarjeet said the criteria for the court to grant the mandamus order sought by Najib was not met.
“Hence, the application for leave is to be dismissed with no order as to costs,” the judge said.
The Pardons Board was represented by senior federal counsels Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi.
Najib was represented by Tan Sri Muhammad Shafee Abdullah, who has indicated that he has received instructions to appeal and that Amarjeet's broad grounds may be sufficient.
Shafee also told Amarjeet that he may consider filing a writ of summons.
A writ is a legal document from a court that provides directions used to enforce the rights of individuals and to ensure that justice is served. It is considered a wider legal action compared to a judicial review.
In April, Najib filed the judicial review application, citing a purported addendum by the then-King in his pardon, which, if it exists, would compel the government to release him from Kajang Prison to his known residence here. The application also sought a copy of the speculated addendum.
Royal pardon matters, however, are protected by the Official Secrets Act.
Najib is currently serving a six-year jail sentence and a RM50 million fine after being found guilty of seven charges in relation to abuse of power, criminal breach of trust, and money laundering of SRC International Sdn Bhd funds. SRC is a former subsidiary of 1Malaysia Development Bhd (1MDB).
The original punishment was for 12 years in jail and a RM210 million fine before a partial royal pardon in March by the previous King, Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah.