YESTERDAY, the Court of Appeal decided to allow Najib’s appeal for leave to commence judicial review to compel the Home Minister and the government to enforce the alleged decree on house imprisonment by the previous Yang di-Pertuan Agong.
Some people asked me, “Does this mean Najib can serve the remaining custodial sentence in his house?”
The answer is a resounding no. At least not yet. And hopefully it will never happen at any time. At least that is my personal wish.
In a nutshell, the court of appeal only allowed Najib’s appeal in respect of the application for leave for him to proceed with the judicial review hearing on the merits.
In any judicial review application, there are essentially two stages. Yesterday’s appeal only entailed the first stage of the hearing of Najib’s application for judicial review.
The law is duly structured in such a fashion to ensure the courts will not be unnecessarily flooded with vexatious applications. Hence the leave application is designed to act as a filter.
For any application for leave to survive, the applicant – like Najib – is only required to establish that his application raises prima facie arguable cases.
And lawyers also contend the threshold for leave to be given is relatively low.
The court of appeal basically reversed the decision of the high court which held that Najib’s application failed to establish an arguable case. The high court also ruled that the foundation of Najib’s application was based on hearsay evidence.
In other words the high court decided that Najib had failed to pass the required threshold.
In a split 2-1 decision, the three-person appellate bench chaired by judge Datuk Azizah Nawawi has now ordered the matter be reverted to the Kuala Lumpur High Court for hearing of the merits of the judicial review.
Yes, it was not a unanimous decision. One of the appellate judges gave a dissenting verdict. 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,” she said.
She also held there is no legal duty on the six respondents named by Datuk Seri Najib Razak in his legal bid to confirm the existence of a royal addendum order.
The majority, however, ruled the non-response by the six respondents to a letter written by Najib’s lawyers was unacceptable. The said letter sought to confirm the existence of such addendum.
As expected, Najib’s die hard supporters and some politicians are capitalising the decision of the court of appeal to the hilt.
They argue that because of the appellate court’s decision yesterday, the existence and even the authenticity of the addendum are no longer an issue. Is this true?
At paragraph 11 of the majority opinion, the judges categorically held that at that stage of hearing, they were not really concerned with the authenticity of the addendum. In my view, such a finding is arguably correct simply because at such a stage of hearing, the court did not have to decide the case on the merits.
Those who are familiar with judicial review applications will certify that, at the leave stage of the judicial review application, all the six respondents were not bound or obliged to file any affidavit in reply confirming or denying Najib’s allegations. That will come later- at the second stage. That is how the process of judicial review operates.
Anyway, Najib still has one more hurdle to pass.
Finally, with or without the addendum, the undeniable fact remains that Najib is a convicted felon. He was also dubbed as a national embarrassment by the court prior to this.
In some cultures which are defined as guilt or shame cultures, a politician like Najib may have difficulties to survive at all. But here, Najib not only survives, he also triumphs.
Guilt cultures emphasise punishment and forgiveness as ways of restoring moral order. Shame cultures, on the other hand, stress self-denial and humility as ways of restoring social order. – January 7, 2025
Mohamed Hanipa Maidin is a former deputy minister of law.
Epilogue: Yesterday’s decision might be considered as a good news to Najib and his blind followers. Whether the decision is good for Malaysia and the unity government in particular, remains to be seen.
