Former prime minister Najib Abdul Razak has won his appeal, putting him a step closer to implementing a royal addendum for him to serve house arrest.
- Split 2-1 decision from three-person appellate bench
- No challenge to the existence or authenticity of royal addendum
The Court of Appeal this afternoon allowed his appeal for leave to commence judicial review to compel the home minister and the government to enforce the alleged decree by the previous Yang di-Pertuan Agong.
In a split 2-1 decision, the three-person appellate bench chaired by judge Azizah Nawawi ordered the matter be reverted to the Kuala Lumpur High Court for hearing of the merits of the judicial review.
Azizah delivered the dissenting ruling denying the appeal, while the majority ruling was by fellow appellate member judges Azhahari Kamal Ramli and Mohd Firuz Jaffril.
In reading out the majority ruling, Firuz said that the home minister, the government, and several other respondents did not challenge the existence or the authenticity of the royal addendum.
Firuz noted that no rebuttal came in spite of the respondents previously seeking more time to respond to affidavits alleging the existence of the addendum.
“This (appellate) court cannot ignore the (possibility of the) existence of the (supplementary royal) order by the then Agong.
“We find an issue of hearsay (against the alleged royal addendum) no longer stands.
“A judicial review (leave application) only needs to show there is an arguable case. We order the matter be remitted to the High Court for hearing on the substantive judicial review,” Firuz said.
During the hearing earlier, Firuz said he was disturbed by the government and other respondents never outrightly denying the addendum’s existence in their written submissions.
“I am very disturbed,” Firuz said, adding that he was just expressing his thoughts and had yet at the time decided whether Najib’s appeal ought to be allowed.
Following today’s appellate outcome, Najib is set to rely on his son Nizar’s affidavit as well as an alleged letter from the Pahang palace confirming the existence of the royal addendum issued by Sultan Abdullah Sultan Ahmad Shah, who was the previous Yang di-Pertuan Agong.
It should be noted that the Court of Appeal majority verdict allowed Najib to rely on these.
Najib claimed there was a supplementary royal decree dated Jan 29 last year for the former finance minister to serve the remainder of his six-year jail sentence as house arrest.
The addendum was in addition to the main royal decree that discounted Najib’s 12-year jail sentence and RM210 million fine to a six-year custodial term and RM50 million fine.
The sentence was in relation to the abuse of power, criminal breach of trust (CBT) and money laundering case involving RM42 million of funds from SRC International, a former subsidiary of sovereign wealth fund 1MDB.
Najib has been serving his jail sentence at Kajang Prison since August 2022. He filed his judicial review leave application on April 1 last year.
On July 3 last year, the High Court dismissed Najib’s leave application to proceed with the judicial review.
Judge Amarjeet Singh ruled among others that all the affidavits claiming the existence of the royal addendum amounted to mere hearsay.
He ruled that the affidavits by Deputy Prime Minister Ahmad Zahid Hamidi and Pahang Menteri Besar Wan Rosdy Wan Ismail did not show direct knowledge of the existence of the supplementary order.
Amarjeet said both affidavits instead only cited Investment, Trade and Industry Minister Tengku Zafrul Abdul Aziz claiming the existence of the addendum.
The judge noted that Najib never tried to get Zafrul to affirm the addendum’s existence from the onset.
Amarjeet also ruled that Najib’s two affidavits supporting the judicial review leave action only contained “bare statements without mentioning the source and his belief of the existence of the addendum order”.
Najib’s civil action targeted seven respondents, including the federal government, the home minister, the attorney-general, and the Pardons Board for Kuala Lumpur, Labuan, and Putrajaya.
Dissenting Justice Azizah said there is no legal duty on the respondents named by Najib in his legal bid to confirm the existence of a royal addendum order that would allow him to go on house arrest.
On the main appeal, she said she found no appealable error by the High Court judge.
“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.
“There is no provision in the written law or the very Constitution that could make the Pardons Board confirm or disclose any existence of a pardon order, including the addendum order.
“The appellant 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. It must be dismissed with no cost,” she said.
The case is fixed for case management at the High Court on Jan 13.
Earlier, outside the Palace of Justice, PAS mobilised a rally to show solidarity with Najib.