Explainer: Najib Razak’s rejected bid to serve his remaining jail sentence at home & why it’s still far from over
Despite being in jail for close to 2 years now, former Prime Minister Datuk Seri Najib Razak is never far away from the headlines. Most recently, Najib was in the news again after his application to obtain leave from the High Court for a judicial review to challenge the existence of an addendum order, purportedly issued with the consent of the 16th Yang di-Pertuan Agong, allowing the former Prime Minister to serve his remaining 6 years of imprisonment under house arrest was rejected.
Najib claimed that beyond the partial Royal Pardon he received from the 16th Yang di-Pertuan Agong which halved his jail sentence from 12 to 6 years and reduced his RM210 million fine to RM50 million in the former Prime Minister’s SRC International case, there was also an addendum or additional decree for him to serve his remaining jail sentence under house arrest. The judicial review was filed last April and was soundly rejected by the High Court after the leave application was heard on 3 July.
What is a judicial review and who can file for one?
In simple terms, a judicial review is a court action meant to challenge decisions, actions or omissions by public bodies.
A judicial review can be initiated by any person who is “adversely affected” by a public law decision or anyone who has a real and genuine interest in the subject matter.
In Malaysia, public bodies include government organs which perform public functions such as Ministers, the Federal Government, State Governments, the Royal Malaysia Police (PDRM), the Commissions which regulate industries, Tribunals, Industrial Courts, Local Authorities, Public Universities, land offices and others.
In Najib’s judicial review application, he named 7 public bodies, namely:
- Home Minister
- Commissioner-General of Prisons
- Attorney-General
- Pardons Board of Kuala Lumpur, Labuan and Putrajaya
- Minister in the Prime Minister’s Department (JPM) (Law and Institutional Reform)
- Director-General of Legal Affairs Division at JPM
- Federal Government
All decisions by a public body can be challenged by judicial review, except for 2 main exceptions.
First, if the complaint is not based on principles of public law, or is a mixture of both private and public law. For example, if a patient suffers complications while receiving treatment at a public hospital, a proper action would be by writ or origination summons, which are actions for private parties, rather than a judicial review.
The other exception is that if there is a specific statutory procedure to challenge the public body, it must be adhered to first. For example, if you were fined by the Competition Commission and are unhappy about it, you must appeal to the Competition Appeal Tribunal first rather than initiating a judicial review.
Why did Najib file a judicial review?
Accordingly, one can file a judicial review for several reasons, though in Najib’s case, he did so to obtain a Mandamus, or an order for a public body to do something, from the court in relation to the alleged addendum order allowing him to serve the rest of his sentence under house arrest.
Specifically, the former Pekan Member of Parliament (MP) sought a Mandamus order to compel 1 or all of the respondents he named to confirm the existence of the alleged addendum order dated 29 January 2024.
Furthermore, he also sought a Mandamus order that if the additional decree does exist, 1 or all of the respondents must enforce it immediately by transferring him from Kajang Prison to his residence in Kuala Lumpur to serve the remainder of his prison sentence under house arrest.
So why did the High Court reject Najib’s bid for judicial review?
Before we delve further, it’s worth noting that a judicial review must be filed at a High Court and that it involves 2 stages.
Currently, Najib’s request is only at the first stage, which is called the “leave” stage, where the court will sieve out frivolous and vexatious cases.
During this stage, only the Attorney General’s Chambers appear and not the public bodies named as respondents.
Should the High Court allow the leave application, it would then proceed to the “substantive” stage, where the full merits of the case get decided by the Court.
Moreover, a judicial review is conducted by affidavit evidence, meaning that no witnesses will appear in a trial but instead, the matter will be decided by documentary evidence. Only in rare circumstances does one can apply to cross-examine witnesses.
With that in mind, the High Court rejected Najib’s leave application for judicial review after finding that the 2 affidavits filed in support of his request were mere hearsays.
The 2 affidavits were filed by the UMNO President Datuk Seri Dr Ahmad Zahid Hamidi and Vice-President Datuk Seri Wan Rosdy Wan Ismail.
In his broad judgement, Judge Datuk Amarjeet Singh dismissed the leave application and asserted,
“In Ahmad Zahid’s affidavit, he said he was informed by Tengku Datuk Seri Zafrul Tengku Abdul Aziz (Minister of Investment, Trade and Industry) of the existence of the addendum order and Tengku Zafrul told him that His Majesty had shown him the order and that Tengku Zafrul had also taken a photograph of the order.
“Ahmad Zahid said that he saw the photograph of the addendum order in Tengku Zafrul’s phone, purportedly carrying the signature of His Majesty. The averments of Ahmad Zahid were also pure hearsay as the source of the information and his belief was Tengku Zafrul. Ahmad Zahid himself has no knowledge of the addendum order except what he heard from Tengku Zafrul,”
The learned judge added that the two affidavits filed just contained bare statements without mentioning the source and his belief in the order.
He asserted,
“I find that both affidavits are at the highest, pure hearsay. Apart from that, the applicant (Najib) had averred that his solicitors had written to the respondents concerning the same without receiving a reply.
“Najib had relied on the source, which is Tengku Zafrul, but the source did not affirm an affidavit. 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,”
Why this judicial review request is far from over
Despite this setback, the former Prime Minister can still appeal the decision to the Court of Appeal, which Najib has done so.
Furthermore, should the appeal be rejected by the Court of Appeal, Najib can also seek leave to appeal to the highest court in the land, the Federal Court.
Hence, unless the former Pekan MP decides to retract the leave to appeal, the matter may take a considerable amount of time to be resolved.
Regardless of the outcome though, it’s important for everyone to remain calm and allow the legal process to take its course.
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