The Court of Appeal panel of three judges on Monday (January 6) ruled by a majority of 2 to 1 to approve former Prime Minister Datuk Seri Najib's appeal against the dismissal of his judicial review application concerning the existence of a home detention additional decree. The case will be referred back to the Kuala Lumpur High Court for trial.
Judges Datuk Aziah and Datuk Seri Mohd Firuz agreed with Najib's appeal, overturning the High Court's dismissal of his judicial review application. However, the panel's chief, Datuk Azhar, disagreed, stating that Najib's appeal lacks merit.
Azhar also rejected Najib's application to present additional evidence in support of his claim, but Aziah and Mohd Firuz allowed Najib's application.
The 71-year-old Najib appealed against the High Court's decision on July 3 last year, which dismissed his judicial review application to examine whether the 16th Yang di-Pertuan Agong, Sultan Abdullah, had issued consent for a home detention additional decree.
Judge Mohd Firuz, reading the majority decision, said the court has duly considered the High Court judge's reasons for dismissing the application, most of which were based on the applicant's (Najib's) reliance on hearsay evidence.
"Based on the new evidence submitted by the applicant, we believe that the hearsay evidence issue is no longer valid.
"Considering that in a judicial review, the applicant only needs to show reasonable grounds with reason that his rights or interests have been violated and that it’s not frivolous and vexatious, we decided to support his appeal.
"Therefore, we order the case to be returned to the High Court for a substantive hearing on the judicial review application."
Regarding the application to submit additional evidence, Mohd Firuz stated, the applicant had written to the respondent seeking confirmation of the existence of the additional decree, but the respondent never replied to those letters.
"Despite the respondent's indifference, the applicant continued attempting to obtain evidence of the additional decree from various sources, including statutory declarations by Datuk Seri Ahmad Zahid and the Chief Minister of Pahang (Datuk Seri Wan Rosdy)."
"At the High Court, the judge ruled that the information obtained from these diverse sources was hearsay."
He stated that the applicant's son (Datuk Mohd Nizar) obtained a copy of the additional decree from the Pahang Sultan's office on August 17, 2024, with strict instructions forbidding its use without the Sultan's consent.
He stated that the applicant later sought the consent of the Pahang Sultan to use the decree in the appeal, and after receiving the Sultan's consent on December 2, 2024, submitted this decree to the court.
"Without the Sultan's consent, the applicant could not submit the additional decree to the court nor compel the Sultan to provide it. Hence, we believe the applicant has adhered to the principles established in the Ladd v Marshall case."
On April 2024, Najib filed a request for a judicial review order naming the Minister of Home Affairs, Director-General of Prisons, Attorney General, Federal Territories Pardons Board of Kuala Lumpur, Labuan, and Putrajaya, Minister in the Prime Minister's Department (Law and Institutional Reform), Director of Legal Affairs of the Prime Minister's Department, and the Malaysian Government as the first to the seventh respondents.
Najib requested a court order to compel all respondents or any one of them to respond and verify the existence of the additional decree dated January 29, 2024.
The applicant also sought another court order stating that if the additional decree exists, all or any of the respondents must immediately execute it and transfer the applicant from Kajang Prison to his residence in Kuala Lumpur to complete the remainder of the sentence through home detention.