KUALA LUMPUR – The inclusion of Prime Minister Datuk Seri Anwar Ibrahim’s speech in Datuk Seri Najib Razak’s bid to compel the government to produce his house arrest order was a curveball amid the supporting affidavits filed by other Umno leaders.
Those who may be excited for the prime minister to appear in court could be disappointed, as senior lawyer Datuk Seri Rajan Navaratnam said witnesses are not needed in court to give testimonies as judicial review cases are decided on affidavits filed by parties to the suit.
“So, there would be no issue of asking Anwar to come to court. If at all possible, Anwar can seek leave from court to rebut or answer the issues or averments made in Najib’s affidavit concerning him.
“However, in some rare instances, any party can apply to court for leave to cross-examine any deponent in respect of an affidavit filed,” he told Scoop.
Meanwhile, former Court Of Appeal judge Datuk Hamid Sultan Abu Backer told Scoop that the court is not required to assess the merit or credibility of the contents of the affidavits or supporting affidavits filed, seeing that Najib’s bid is at the leave application stage.
“The principle of law related to leave applications in judicial review matters is quite straightforward and the court has a wide discretion to grant leave.
“The threshold for granting leave is very low. It is normally granted if the application is neither frivolous nor vexatious and it justifies further argument to decide on the merit of the application.
“Once leave is granted, all necessary and interested parties may have to file an affidavit if they disagree with the facts alleged by the applicant. Usually, the court may give direction on how it should be done upon the application of any party to the proceeding.”
Hamid added that, as a general rule, the court will lean towards the applicant who alleges his constitutional or procedural rights are trampled by the state, the executives or agencies.
“Intentionally trampling on rights of this nature may also lead to misfeasance proceedings, which is a tort and, if successfully proven, (it) may result in general and punitive damages against the tortfeasors.
“(However) the facts on this addendum issue, if true, are unprecedented in the global judicial history of cases.”
However, lawyer Muhammad Haniff Khatri Abdulla said Anwar’s comments on the addendum order related to Najib spending the remainder of his jail term in house arrest carry weight even though the prime minister did not give a definitive admission on the order’s existence.
Haniff told Scoop that Anwar’s speech, which was delivered in his capacity as a prime minister, is enough to be used to support Najib’s leave application, as it could give the perception that the government knows, or believes, that there is an existence of the addendum order.
“(Because) otherwise, why are you talking about (ways to discuss the order) in your speech? So, in that particular speech, (it) can support the belief that there is an addendum order.
He added that the court may use its discretion under Order 53 of the Rules of Court 2012 to call any individuals required for cross-examination if there are such requirements.
“But, as it stands, no… there is no requirement for Anwar or even the Sultan of Pahang to come (and give evidence in court). However, the sultan may give authority to a special officer to affirm an affidavit, as to what he may want to say on the existence of the addendum order, if he is asked to come.”
Leave means permission that is granted by the court or sought by individuals wanting to initiate a civil suit, in which, without such permission, the suit’s merits would not be heard.
Najib, in his latest supporting affidavit filed on May 25, claims Anwar speaking about the addendum order in his speech brought the strongest interference of its existence.
Anwar’s speech, which was delivered on April 21, says any decision on the addendum order, as well as the Yang di-Pertuan Agong’s decision, must be made at the Pardons Board meeting.
He added that he was “attacked” by many due to Datuk Seri Ahmad Zahid Hamidi’s supporting affidavit in Najib’s application, where Zahid claimed he was informed and saw a copy of the addendum order on Investment, Trade and Industry Minister Datuk Seri Tengku Zafrul Tengku Abdul Aziz’s phone.
Apart from Zahid’s affidavit, the court has accepted Pahang Menteri Besar Datuk Seri Wan Rosdy Wan Ismail’s application to file a supporting affidavit for Najib’s bid, where the content is similar to Zahid’s.
The court has previously dismissed Tengku Zafrul’s bid to file his own affidavit to correct certain “factual errors” in Zahid’s affidavit after finding that the former is not a party to the suit, as the case is still at the leave application hearing stage.
Yesterday, Najib’s lawyer, Tan Sri Muhammad Shafee Abdullah, confirmed that the high court would deliver its decision on Najib’s leave application on July 3.
Najib filed the leave application on April 1, seeking to compel the government to confirm the existence of the addendum order.
He named the home minister, the commissioner-general of prisons, the attorney-general, the Federal Territories Pardons Board, the government, the law minister and the director-general of the legal affairs division in the Prime Minister’s Department as respondents.
Najib, currently serving a jail sentence for corruption in the SRC International case, requested the respondents confirm the addendum order’s existence.
If the order exists, he seeks its execution, the provision of original copies, and any other relief the court deems appropriate.
The Pardons Board halved his prison sentence from 12 years to six and reduced his fine from RM210 million to RM50 million during its meeting on January 29. – June 6, 2024