Appelate Court Remits Najib's Legal Bid Over Alleged Royal Addendum To High Court

PUTRAJAYA, Jan 6 (Bernama) -- The Court of Appeal, in a 2-1 majority decision, has remitted Datuk Seri Najib Tun Razak's legal bid regarding his claim of the existence of a royal addendum allowing him to serve the remainder of his six-year prison sentence under house arrest, to the High Court for a hearing on its merits.

Justices Datuk Azhahari Kamal Ramli and Datuk Seri Mohd Firuz Jaffril allowed the former premier's appeal to overturn the High Court's dismissal of his application for leave to commence a judicial review on the matter.

However, Justice Datuk Azizah Nawawi, who led the panel, dissented stating Najib’s appeal had no merit.  

Justice Azizah also denied Najib's application to adduce additional evidence to support his claim of the existence of such an addendum, whereas Justices Azhari and Mohd Firuz allowed it.

Najib, 71, is appealing the Kuala Lumpur High Court’s July 3 decision last year, which dismissed his application for leave to commence a judicial review of a purported addendum issued by the 16th Yang di-Pertuan Agong.

Delivering the majority decision, Justice Mohd Firuz stated that the court took note of the High Court judge's reasoning for dismissing the leave application, which was largely based on the applicant (Najib) relying on hearsay evidence.

"Premised on the new evidence admitted by the applicant, we find that the issue of hearsay can no longer stand. 

"Bearing in mind that an applicant in a judicial review only needs to show that he or she has a good arguable case premised on the fact that his interest or rights have been aggrieved and one that is not frivolous and vexatious, we are minded to allow the appeal.

“We hereby, order the matter to be remitted to the High Court for the hearing of the substantive judicial review application,” he said.

Regarding the application to adduce additional evidence, Justice Mohd Firuz noted that the applicant had written to the respondents seeking confirmation of the existence of the addendum order, however, they did not respond. 

"The applicant continued to try to obtain evidence of the existence of the addendum order from various sources which includes the affidavit of Datuk Seri Ahmad Zahid Hamidi and Pahang Menteri Besar (Datuk Seri Wan Rosdy Wan Ismail).

"At the High Court, the learned judge had decided that the information obtained from these various sources were hearsay," he added.

The judge further said the applicant’s son (Datuk Mohamad Nizar) obtained a copy of the addendum order from the office of the Sultan of Pahang on Aug 17, 2024, with strict instructions it should not be used without the Sultan’s consent.  

He said the applicant then sought the Sultan's permission to include the addendum in his affidavit for the appeal, obtaining the consent on Dec 2, 2024, after which he proceeded to file the addendum with the court.

"Without the consent, it was not possible for the applicant to file the addendum into court nor can the applicant compel the Sultan to furnish the said addendum. We are therefore of the view that the applicant had complied with the principles propounded in Ladd v Marshall," said the judge. 

Justice Mohd Firuz also pointed out that there is no rebuttal affidavit from the respondents challenging either the existence or the authenticity of the addendum.

"We are of the considered view that the failure of the respondents to challenge the same means this court cannot simply ignore the existence of the order by the then Yang di-Pertuan Agong. Therefore, we allow the applicant's application to adduce new evidence," he said.

The court then fixed Jan 13 for case management at the High Court.

Meanwhile, Justice Azizah in her minority decision said, there was no appealable error made by the High Court in ruling that the evidence presented in the hearing was hearsay. 

"I agree with the finding of the High Court judge that there is no legal duty imposed on the respondents, particularly the Pardons Board, to confirm the existence or produce any order related to the exercise of the power of pardon," she said.

Justice Azizah further stated that neither the written law nor the Federal Constitution contains any provision requiring the Pardons Board to confirm or disclose the existence of a pardon order, including the addendum order.

"The appellant (Najib) failed to demonstrate that such legal duty existed to confirm or produce the same. I am of the considered opinion that there is no merit in the appeal and the appeal must be dismissed with no order as to costs," she said.

On dismissing Najib's application to adduce new evidence, Justice Azizah said there was no merit in the application.

The judge said the affidavit by Najib’s son Mohamad Nizar, which the latter affirmed on Dec 2 last year, stated that he frequently meets the Pahang ruler.

“In view of the admission that he meets the Sultan frequently, it cannot be said that fresh evidence could not be obtained with reasonable diligence at the hearing before the High Court judge,” she said.

Earlier during the proceedings, Najib’s counsel Tan Sri Muhammad Shafee Abdullah produced a letter from Majlis Kesultanan Pahang regarding the addendum while submitting Najib’s application to present additional evidence. 

“The letter dated Jan 4, this year was addressed to Najib’s eldest son Datuk Mohamad Nizar by the Comptroller of the Royal Household of the Sultan of Pahang, Datuk Ahmad Khirrizal Ab Rahman,” he said.

Meanwhile, senior federal counsel Shamsul Bolhassan representing the government and other respondents said the addendum was never discussed or brought up during the Federal Territory Pardons Board’s 61st meeting on Jan 29, 2024.

“The main order as announced in February had agreed to reduce Najib’s jail sentence from 12 years to six years, and the fine of RM250 million to RM50 million.

“That (main order) is the only one signed and sealed by the 16th Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah that halved the sentence and this order was directed to the then minister,” he said.

Shamsul submitted that the application to adduce fresh evidence should be dismissed, as its ultimate effect amounts to an attempt by Najib to challenge the primary order.

Furthermore, he contended that there is an additional issue regarding the main order being non-justiciable and therefore not subject to judicial review.

-- BERNAMA