PUTRAJAYA (Dec 5): Datuk Seri Najib Razak claims he has obtained new evidence to prove the existence of a purported addendum that allows him to serve the remainder of his jail sentence under house arrest, and has applied to adduce it to his appeal for a judicial review to compel the government to produce the document.
The former prime minister's legal counsel Tan Sri Muhammad Shafee Abdullah told the three-member Court of Appeal bench on Thursday that he had submitted an application to adduce the fresh evidence. The bench was led by judge Datuk Azizah Nawawi. The other two members were judges Datuk Azhari Kamal Ramli and Datuk Seri Mohd Firuz Jaffril.
Azizah said the bench was not informed of this and that the hearing on Thursday was supposed to be just for Najib's appeal against the High Court's July 3 dismissal of his application for leave to initiate the judicial review.
Shafee argued that Najib had just got this evidence on Dec 2 (Monday) and that he had filed the application the very next day.
Senior federal counsel Shamsul Bolhassan, who represented the government, informed the court that his team had only received a copy of the application on Wednesday.
“For us, we need time to verify the exhibit they want to adduce and need time to consider whether to reply to the affidavit. The document was not signed and sealed,” said Shamsul, who appeared with senior federal counsel Ahmad Hanir Hambaly @ Arwi. They were also representing the Federal Territory Pardons Board, the Prisons Department and the home minister.
Shafee said the application to adduce further evidence has to be heard first, before the appeal over the High Court's dismissal of the leave application for the judicial review is heard. He also sought to have the court fix an early hearing date for the new application.
Azizah said this COA bench cannot decide on the dates as the discretion lies with the registrar.
“So, this appeal cannot be heard today until the application to adduce the fresh evidence has been dealt with. For us, we cannot decide on hearing this application as another bench may take over.
"This bench can only hear (the application to adduce fresh evidence) if the appeal (for leave to obtain judicial review on the addendum) is part-heard. We have no discretion for the fixture of date as you asked for an early hearing date. This will be decided by the registrar,” Azizah said.
Following case management later in the afternoon, Ahmad Hanir confirmed that the appellate court has fixed Jan 6, 2025 to hear both applications.
Now, son Nizar also has a supporting affidavit
Shafee told the press later that Najib’s son, Pahang exco member Datuk Mohd Nizar Najib, had affirmed an affidavit in support of Najib's judicial review bid.
“I cannot reveal the contents of the affidavit,” Shafee said.
In dismissing Najib’s application for leave or permission to compel the government to produce the purported addendum in July 3, High Court judge Datuk Amarjeet Singh Serjit Singh had said the court could not make a decision based on hearsay evidence. Hence, Najib’s judicial review bid failed to pass the threshold for the court to grant leave.
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, had also said the affidavits affirmed must contain facts that had been verified, while the two affidavits filed by Najib contained bare statements without mentioning the source.
He further noted that Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi and Pahang Menteri Besar Datuk Seri Wan Rosdy Wan Ismail, in their affirmed affidavits, had stated that their source of 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 had ruled.
Najib was sentenced to 12 years’ jail and fined RM250 million after being found guilty for graft involving RM42 million of SRC International Sdn Bhd's monies. He has been serving his sentence since Aug 23, 2022.
His jail term was halved to six years while the fine was reduced to RM50 million after a partial royal pardon was granted to him following a Jan 29 meeting this year by the Federal Territory Pardons Board chaired by the former Agong, Sultan Abdullah Ri’ayatuddin. The meeting was one of the king's last official tasks before he stepped down from the post on Jan 31.
However, Najib claims there is an addendum to the pardon order, which he wants the authorities to produce, that allows him to serve the rest of his sentence under house arrest.