PUTRAJAYA (Oct 22): The Court of Appeal (COA) has fixed Dec 5 to hear former prime minister Datuk Seri Najib Razak’s appeal against the High Court’s dismissal of his judicial review asking for the production of a purported addendum that allows him to serve the remainder of his jail sentence under house arrest.
The addendum, allegedly dated Jan 29 this year, is claimed to be part of the 16th Yang di-Pertuan Agong’s order for Najib’s sentence to be reduced.
Senior federal counsel Ahmad Hanir Hambaly @ Arwi, who is deputy head of the Civil Division III at the Attorney General’s Chambers, confirmed the hearing date of the former prime minister’s appeal.
“The date has been fixed for the hearing of the appeal on Dec 5,” Ahmad Hanir told The Edge.
On July 3, the High Court dismissed Najib’s application to grant leave (permission) to hear the merits of the judicial review, ruling that the affidavits in support by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi and Pahang Menteri Besar Datuk Seri Wan Rosdy Wan Ismail were hearsay.
High Court judge Datuk Amarjeet Singh Serjit Singh said the court could not make a decision based on hearsay evidence, and hence, Najib’s judicial review failed to pass the threshold for the court to grant leave, or to grant the mandamus order sought by Najib to compel the authorities to comply with his demand to produce the purported addendum.
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.
Amarjeet in his decision said that 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 had said the source of the information on the existence of the addendum order was Investment, Trade, and Industry Minister 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.
The High Court also ruled that Tengku Zafrul allegedly showing the purported addendum order on his (Tengku Zafrul’s) handphone could not be considered as secondary evidence under the Evidence Act.
“In this case, and in view [of] 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.
Najib's application made on April 1
Najib filed the judicial review application on April 1 this year, citing a purported addendum by the then-King in his pardon, which, if it exists, would compel the government to release Najib from Kajang Prison to live in 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 (coupled with 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 Yang di-Pertuan Agong, Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah.
During the recent Parliament session, Prime Minister Datuk Seri Anwar Ibrahim also disclosed that the government is working on a Bill of law that would allow convicted persons to serve their prison sentence under home detention, and Home Minister Datuk Seri Saifuddin Nasution Ismail said that the Bill would be tabled next year.