PUTRAJAYA: There is no legal duty on the respondents named by Datuk Seri Najib Razak in his legal bid to confirm the existence of a royal addendum order that would allow him to go on a house arrest, says a Court of Appeal judge.
Justice Azizah Nawawi, who chaired a three-judge panel of the appellate court, said this in her dissenting judgment in Najib's appeal against the High Court's dismissal of his leave application to initiate judicial review here on Monday (Dec 6).
On the main appeal, Justice Azizah 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 court had also heard Najib's application to adduce new evidence in his application.
The new evidence was a letter from the Majlis Kesultanan Pahang that stated His Royal Highness the Sultan of Pahang had indeed given the order for Najib to serve the remaining of his jail sentence under house arrest.
The letter, dated Jan 4, was addressed to Najib's eldest son Datuk Mohamad Nizar and signed off by the Comptroller of the Royal Household of the Sultan of Pahang Datuk Ahmad Khirrizal Ab Rahman.
On this application, Justice Azizah said Mohd Nizar himself affirmed in his supporting affidavit that he frequently met with HRH Sultan of Pahang in his line of work.
"In view of the admission that he met the Sultan frequently, it cannot be said that fresh evidence could not be obtained with reasonable diligence for use before the hearing before the learned High Court judge.
"This can be seen when the deponent (Mohd Nizar) subsequently obtained the same addendum many months later after the decision by the learned High Court judge.
"Therefore, I am of the considered opinion that there is no merit to the application on this fresh evidence," she said.
The 2-1 majority decision, held by two other judges; Justices Azhahari Kamal Ramli and Mohd Firuz Jaffril, had overturned the High Court's dismissal of Najib's leave application and allowed his application to admit the letter from the Majlis Kesultanan Pahang into evidence.
The court then remitted the case back to the High Court for a substantive hearing on the merits of the judicial review.
The case is fixed for case management on Jan 13.
Najib filed the application for leave for judicial review on April 1, 2024.
He named the Home Minister, the Commissioner General of Prisons, the Attorney General, the Federal Territories Pardons Board, the Minister at the Prime Minister's Department (Law and Institutional Reform), director-general of the legal affairs at the Prime Minister's Department and the government as the first until the seventh respondents respectively.
In the notice of application, Najib sought a mandamus order that all of the respondents or one of them to answer and verify the existence of the addendum order dated Jan 29, 2024.
Najib is seeking a mandamus order where if the addendum order exists, all or one of the respondents must execute the royal order and immediately move him from the Kajang Prison to his residence in Kuala Lumpur where he would serve his remaining sentence under house arrest.
On July 4, 2024, the Kuala Lumpur High Court dismissed Najib's application for leave, citing hearsay in supporting affidavits.
This prompted Najib to appeal the decision at the Court of Appeal.
