Most Read
Most Commented
mk-logo
From Our Readers
LETTER | Rally if you must, but read addendum order judgment too

LETTER | The media have been reporting that PAS will hold a solidarity rally at the Palace of Justice in Putrajaya on the day the Court of Appeal hears former prime minister Najib Abdul Razak’s appeal against the High Court’s decision regarding the alleged addendum issued by the previous king.

In a letter dated Dec 28, PAS secretary-general Takiyuddin Hassan urged party members to attend the rally “to send a clear signal to the Madani government about the supremacy of the constitution and the rule of law demanded by the people.”

Has Takiyuddin read the reported case?

In the case of Dato’ Sri Mohd Najib bin Tun Hj Abd Razak v Menteri Dalam Negeri & Ors [2024] MLJU 1695, Najib (the applicant) filed an application for leave to commence judicial review under Order 53 of the Rules of Court 2012, principally, for the following orders:

  • To answer and/or confirm the existence of a supplementary order to the main order dated the same date (ie Jan 29, 2024) (which the applicant refers to as the “addendum order”) and which order provided that the applicant was to serve the reduced term of imprisonment under house arrest;

  • To provide the applicant with a copy of the main order and the addendum order dated Jan 29, 2024.

The orders sought are in the nature of mandamus - that is, to compel all or any of the respondents to do the above acts.

The attorney-general (AG) appeared and opposed the application, which was heard on April 17, 2024, on the grounds that the prerequisites of mandamus were not met and that the test for leave was not satisfied.

The learned High Court judge dismissed the application for leave.

In his written judgment, the learned judge said that to obtain leave under Order 53 rule 3(2) of the Rules of Court 2012, the applicant must file an affidavit verifying the facts stated in the Order 53 statement.

However, not one of the affidavits filed in the court with regard to the existence of the addendum order was within the direct knowledge of the deponents. The evidence was pure hearsay.

The learned judge said: “It is pertinent to observe that an application for judicial review is decided on affidavit evidence. In very rare circumstances, a deponent can be cross-examined on his affidavit verifying facts (see Order 53 Rule 6 of the Rules of Court 2012). The affidavit verifying facts is therefore an important component for obtaining leave and subsequently for the purposes of the substantive stage.

“The crucial question is whether hearsay may be referred to in an affidavit verifying the facts. I found that [the four affidavits] concerning the addendum order are hearsay.”

On whether the criteria for mandamus were satisfied, the learned judge said: “It is trite as held by the Federal Court in Minister of Finance, the Government of Sabah v Petrojasa Sdn Bhd [2008] that an order of mandamus as a relief is governed by Section 44 of the Specific Relief Act 1950 (SRA) or Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (CJA).

“[Since] the application is made under Order 53… the relief of mandamus is subject to the provisions of Section 44 of the SRA, which is the substantive law.”

The prerequisites essential to the issue of an order under Section 44 or of a mandamus are as follows:

  • The applicant must have a clear and specific legal right to the relief sought;

  • There must be a duty imposed by law on the public officer(s);

  • Such duty must be of an imperative ministerial character involving no judgment or discretion on the part of the public officer(s); and

  • The applicant must not have any remedy, other than by way of mandamus, for the enforcement of the right which has been denied to him.

The learned judge found that “there is no provision in any written law or the Federal Constitution that imposes a legal duty on the part of the Pardons Board to confirm the existence or produce any order wherein the power of pardon is exercised. It was agreed by all parties at the outset that there is no written law concerning the Pardons Board. Mandamus can be granted only when a legal duty is imposed on an authority.”

Since the applicant failed to show “any failure on the part of the respondents, in particular the Pardons Board, to perform any statutory duties compelled to them in law” the learned judge ruled that the applicant had failed to establish the requirement under Section 44(1) of the SRA.

“The criteria for an order of mandamus is (sic) therefore not met”, concluded the learned judge.

Prior to the conclusion, the learned judge had also addressed the applicant’s submission that the respondents did not reply to his solicitors’ letters to confirm or otherwise the existence of the addendum order.

The failure to reply, according to the applicant, drew adverse inference under Section 114 Illustration (h) of the Evidence Act 1950.

The learned judge dismissed the submission and had the following to say: “It suffices to state that [the provision] does not apply to affidavits by virtue of Section 2 of the Evidence Act 1950.

“More importantly, while it is good governance and transparency for public officers to respond to queries… the law does not impose a duty on the respondents to do so.”

Did the learned judge err on the law?

The Court of Appeal will decide after hearing the appeal of the applicant on Jan 6, 2025.

Hold a solidarity rally if you wish but read and understand the grounds of judgment too.

Let the Court of Appeal decide.


The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.


Please join the Malaysiakini WhatsApp Channel to get the latest news and views that matter.

ADS