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3 serious errors in the HC Judgment of Najib v Menteri Dalam Negeri & ors. (Judicial Review 136, KLHC)

  • Writer: Gavin Jayapal
    Gavin Jayapal
  • 2 days ago
  • 16 min read
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Ninety percent of the politicians give the other ten percent a bad reputation. -Henry Kissinger, Political Scientist and former US Secretary of State

 

Given the heart-on-your-sleeve nature of politics, I preface this article by stating that it is purely a legal opinion piece. It is not meant to be a statement of principle or political leaning.  


The High Court has just released its Grounds of Judgment for Najib v Menteri Dalam Negeri & 6 ors.

 

To understand the High Court’s reasoning in full (and to understand my explanation as to why the HC went awry), it is also necessary to read the findings of the Federal Court (also available at [2025] 5 MLJ 944).

 

The factual matrix

 

The factual matrix is set-out at paragraphs 3-11 of the Grounds. Briefly put:

 

  1. Najib was convicted by the HC in the SRC case on 28.07.2020. His sentence was 12 years’ imprisonment and a fine of RM210m. This was affirmed by the CA (08.12.2021) and FC (23.08.2022);

     

  2. Petitions for pardon were filed under Article 42 of the Federal Constituition;

     

  3. On 29.01.2024, the 61st Pardons Board Meeting was convened. It was presided-over by the Yang di-Pertuan Agong (YDPA);

     

  4. The YDPA suggested that Najib be given a full pardon. This was rejected by the other members;

     

  5. The YDPA then suggested a 50% reduction in sentence term and a reduction of the fine amount (210m to 50m). If the fine was unpaid, Najib would spend another year in prison. Having received the feedback of the members of the Pardons Board, this was determined to be the right course by the YDPA.

  

The shindig at Sungai Buloh


What then transpired was interesting. Having determined that a reduction was warranted, the YDPA issued an Early Release Order dated 02.02.2024 (ERO) to the Commissioner General of Prisons.

 

In or about 12.02.2024, Najib claimed to have received reliable information that in addition to the ERO, the YDPA had issued an Addendum Order, wherein it was declared that Najib would serve his sentence under “home arrest”.

 

Najib wrote to the various Governmental bodies but received no response.

 

The filing of JR 136

 

Najib then filed JR 136. In gist, he sought the following relief:

 

  1. Orders confirming the existence of the Addendum Order;

     

  2. That he be removed from Kajang Prison and be emplaced at his home to undergo house arrest.

     

The initial outcome of the JR


Najib was initially refused leave to commence Judicial Review. This was appealed.

 

At the CA, a Motion was filed to adduce fresh evidence. This was allowed (motion) and leave to commence Judicial Review was allowed.

 

The FC dismissed the AG’s appeal (although the FC disagreed with certain observations made by the CA). The matter was then remitted to the HC for substantive Hearing.

 

Crucially, the FC made these observations:


[21] Be that as it may, although there was a concession with regards to the existence of the purported Addendum Order, we need to emphasize that:
• Firstly, it is not our judgment herein that the Addendum Order is part of the Pardons Order and neither are we saying that it is not. It is premature at this stage for this Court to make such a determination.
• Secondly, despite the existence of the Addendum Order, that by itself, does not translate into automatic admissibility of the same. The respondent still has to satisfy the rule and criteria as to the admission of the Addendum Order as new evidence, which we will address accordingly in our judgment.
• Thirdly, the existence of the Addendum Order does not automatically render the Addendum Order as valid. This issue would have to be determined at the substantive hearing in the Judicial Review proceedings, if leave is granted. In this context Article 42 of the Federal Constitution takes center stage, namely:   

 

- Article 42 of the Federal Constitution governs the royal prerogative of mercy, whereby the Yang di-Pertuan Agong (YDPA) is empowered to grant pardons, reprieves, and respites in respect of all offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya. - The exercise of such clemency by the YDPA is not absolute. It is to be carried out in accordance with the constitutional limits prescribed by Article 42, particularly through the framework of advice and procedure embedded therein
- Pursuant to Article 42(4)(b), the YDPA is required to act on the considered advice of the Pardons Board for the Federal Territories. His function in the clemency process is therefore inextricably tied to the deliberations and recommendations made by the Board established for that purpose.

 

 To simplify the FC’s elegant prose:

 

  1. The issue of whether the Addendum Order was valid (or otherwise) was a live issue. However, it was to be determined by the HC hearing the substantive JR;

     

  2. The HC would also determine whether the Addendum Order was a part of the ERO;

     

  3. The YDPA would only be able to exercise his powers vis-à-vis the Addendum Order pursuant to Article 42 of the Constitution. Anything else would be unconstitutional. However, the FC made no observations as to whether the YDPA did (or did not) comply with Article 42. That would be a task for the HC.   

 

The HC’s decision and the 3 errors


When one returns to the HC, 3 glaring errors stand out:

 

  1. The learned HCJ determined that the issue of the validity of the Order was no longer in dispute;

     

  2. The learned HCJ allowed redacted documents to be utilised; and

     

  3. The learned HCJ allowed an oblique challenge to the Addendum Order.

 

I will dissect this in-turn.

 

The 1st error: Validity of the Addendum Order

 

It will be recalled that a part of the grounds for JR 136 as advanced by Najib would be that he sought orders pertaining to the validity of the Addendum Order.

 

The FC also specifically observed that this issue (validity) would be one that the HC hearing the substantive JR would determine. The FC also noted that whether the Addendum Order was a part of the ERO would be determined by the HC.

 

Instead of conducting an exercise to determine the veracity (or otherwise) of the Addendum Order, the learned HCJ fell into a serious error of law by determining that this issue had already been decided by the FC:

 

[10] However, the issue as to its existence has now been settled by the decision of the Federal Court. Quite apart from allowing the Addendum Order to be adduced for the substantive Judicial Review proceedings, the Federal Court expressly stated that its existence was no longer an issue; what remained to be determined is its validity.

The learned HCJ went on to state (paras. 12-15) that as the existence of the Addendum Order was not existed, there was no need to produce the originals.


This is incorrect. The Addendum Order contains a crucial paragraph:


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This paragraph suggests that the Addendum Order was discussed during the 61st Pardons Board Meeting. It would be crucial to bring forth this document in its original form, as per Section 62 of the Evidence Act 1950.

 

In N Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286, Chang Min Tat J (retired FCJ) observed as follows with regard to a proclamation of emergency issued by the YDPA:

 

Where the printing, as in this case, fails to disclose the assent of the Yang Dipertuan Agung, the simplest and easiest proof of such an assent would be the production of the original. Primary evidence could in certain circumstances be supplanted or implemented by secondary evidence. Unfortunately, the court is advised by an affidavit filed by the Director-General who as Chief Secretary to the Government of Malaysia, his appointment dating from January 1, 1970, has control over all documents relating to the affairs of the Government, including presumably, the original Ordinance, that the original has been misplaced and cannot now be found, even after a thorough search.

 

This conflating of the existence of the Order against the validity of it was a crucial legal misdirection. The original would be important to enable a timeline point and the oblique challenge point, which is set-out below.

 

The 2nd Error: Allowing redacted Minutes to be utilised at the Hearing

 

Having fallen into the first error, the learned HCJ compounded the same. In this regard:

 

  1. The original Addendum Order was not before the Court;

     

  2. To make a finding as to whether the Addendum Order was rendered in accordance with Article 42 of the Federal Constitution, it would be absolutely crucial to have the full minutes of the 61st Pardons Board Meeting placed before the Court;

     

  3. Only with these full, uncompromised minutes would the Court know exactly what was discussed during the 61st meeting (and whether the Addendum Order surfaced and was discussed, as was suggested by the contents of the Addendum Order itself).

     

The Respondents adduced the discussions of the 61st Pardons Board Meeting via affidavit:

 

[39] The Respondents’ evidence on the deliberations of the Pardons Board Meeting was adduced through the Affidavit of the Deputy Director General (Policy and Development) (“the Deputy DG”) of the Department of Legal Affairs, affirmed on 16.10.2025 and 31.10.2025 on behalf of all the Respondents. The Department functions as the Secretariat for the Pardons Board Meeting. Her affidavit exhibited the following documents:
(i) The Applicant’s Petition for pardon -“PS-2”;
(ii) The Pardon Papers for consideration of the Pardons Board Meeting - “PS-3”; and
(iii) The Minutes of the Pardons Board Meeting -“PS-4”.

 

Very interestingly, PS-4 (the Minutes) were redacted:

 

[40] The admissibility of these documents is objected to by the Applicant. The Applicant is aggrieved by the disclosure. He claims they are highly confidential documents. “PS-2” in particular was disclosed unilaterally without his consent. Additionally, part of “PS4” was redacted, suggesting selective approach to confidentiality which undermines the integrity of the process.

The learned HCJ observed that PS-4 was critical and necessary to determine the central issue:


[41] Although initially classified as “Rahsia”, the documents were subsequently de-classified before they were appended to the Deputy DG’s affidavit as exhibits. The classification and declassification of documents is provided for in the Official Secrets Act 1972 [Act 88]. The law permits the disclosure of classified documents. The Deputy DG explained that portions of “PS-4” were redacted only to protect the confidentiality of the other prisoners whose petitions were also considered at the same Pardons Board Meeting. The admissibility of these documents is therefore beyond question. As for its relevancy, I find the contents of the documents, particularly “PS-4”, to be critical and necessary to address the central issue in this case.

 

At this juncture, what is apparent would be that a critical and necessary document was unilaterally redacted by the Respondents.

 

Why this matters would be this: the Addendum Order could very well have been discussed and deliberated in those redacted portions. The Court simply would not know what is in there unless the same was disclosed in full. Instead of taking the Respondents to task, the learned HCJ passively accepted an “explanation” by the Deputy DG and then claimed that the “admissibility of these documents is therefore beyond question”. This is a plainly wrong finding as these documents are, au contraire, very much questionable.   

 

The case law on this (which was almost single-handedly spearheaded by Wong Kian Kheong J, now presiding JCA) essentially states as follows:

 

  1. Parties are not at liberty to unilaterally redact documents;


  2. Should a party intend to redact a document, they should file an application and seek the leave of Court to redact;


  3. Unilateral redactions may lead to an adverse inference under S. 114(g) of the Evidence Act 1950 being drawn against the party who unilaterally redacts.   

 

See:

 

  • Tokai Corporation v DKSH Malaysia [2016] MLJU 621

  • GS Yuasa Corp v GBI Marketing [2017] 8 MLJ 166

  • Pos Logistics v Kumpulan Perubatan Smarthealth [2020] 9 MLJ 389

  • Yoon Hwa (1983) v Mines Resort [2023] MLJU 2148

  • Karen Yap Chew Ling v Binary Group Services [2023] 4 MLJ 792 (CA)

 

Against the backdrop of such a crucial document being unilaterally redacted by the Respondents, the Court ought to have demanded that a full, unredacted set be produced. Alternatively, the Court should have expunged Exhibit PS-4 in its entirety and drawn an adverse inference against the Respondents.

 

The Court did not do so. Instead, the Court relied on the “explanation” proffered by the Respondents (that purportedly, the redacted portion dealt with other prisoners) and determined that based upon this, the Addendum Order was never discussed.

 

It may well be that the Addendum Order was discussed; we will simply never know as the Respondents tendered redacted documents.

 

The 3rd Error: Allowing redacted Minutes to be utilised at the Hearing and enabling an oblique attack on the Addendum Order

 

The 3rd error would be the HCJ allowing an oblique attack on the Addendum Order. It runs as follows:

 

  1. The Addendum Order exists;

     

  2. It is prima facie valid. It is arguable (given the 2nd error above) that the Addendum Order was discussed at the 61st Meeting. An adverse inference ought to be drawn against the Respondents pursuant to S.114(g);

     

  3. The Court is entitled to presume (pursuant to Sections 114(e) of the Evidence Act 1950) that the Addendum Order was validly entered;

     

  4. As observed by the Supreme Court in Pang Cheng Lim v Bong Kim Teck [1997] MLJU 488 on the applicability of S. 114(e) EA 1950:


There is in evidence that the plaintiff had lodged the petition for distribution of his mother’s estate. There is evidence that the Collector pursuant to such petition had ordered that the said lands be registered in the name of the plaintiff being the beneficiary of the estate. There is no evidence that the Collector had breached any of the provisions of the 1955 Act or the 1955 Rules. There is no evidence that the Collector had not caused the notice of the petition and of the date and place of hearing to be posted at the office of the Collector. There is no evidence that the Collector had not directed that the notice of the petition and of the date and place of hearing be posted at places of public resort which he was mandated to do under r. 6(1) stated above. There is no evidence that he had not directed the notice of the petition and of the date and place of hearing be affixed in a conspicuous position on the said lands and on the Penghulu’s office and that the notice was not so affixed. 
In the circumstances, the presumption under s. 114(e) of the Evidence Act 1950 is applicable. The s. provides as follows: 
114. Court may presume existence of certain fact 
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. 
ILLUSTRATIONS 
The court may presume: 
(e)that judicial and official acts have been regularly performed;
Sarkar on Evidence (14th Edition 1993) at p. 1524 Vol. 2 in commenting on the principle and scope of the illustration (e) of the Indian Evidence Act, which is in pari materia with ours, says: 
The rule embodied in this illustration is a particular application of the maxim “omnia praesumuntur rite esse acto”, ie, all acts have been rightly and regularly done. This presumption is chiefly applied to judicial and official acts. 
And at p. 1525 of the same volume, it says: 
This presumption is also applied in many cases to the acts of private persons. The foundation for the rule is that every person whether in his private or official character, does his duty and unless the contrary is proved, it is presumed that all things are rightly and regularly done. So, it is presumed that in the transaction of affairs or business, the persons employed have followed the usual and customary modes of discharge of duties. 
And at p. 1526, it says: 
“Regularly performed” means performed with due regard to procedure (Jagdeo v. Bulaki, 68 1C 226). “Regularly performed” means performed in accordance with form and procedure. (Ramakirshna Ganapayya Hegde v. Lakasiminarayanan Timmayya Hegde, A 1984 Kant 45, 48; [1983] 2 Kant LJ 409). 
We agree with the above comments. 
The burden is on the defendants to rebut the presumption. They have to produce evidence to prove on the balance of probabilities that the Collector had breached the relevant provisions of the law while performing his official duties in the proceedings for the distribution of the plaintiff’s mother’s estate. The defendants called DW3 (who was not the officer who heard the petition) to give evidence for the defence but his evidence did not reveal any non-compliance with the relevant laws by the Collector. The officer who heard the petition could have been called. It was the plaintiff’s counsel who applied to the learned judge to call the officer but his application was turned down as the plaintiff had already closed his case. But it was still open to the defendants to call him if they wished to. But apparently they did not wish to. They must have been satisfied with just the evidence of DW3 to rebut the presumption. 
In our view the defendants had failed to rebut the presumption. 
As we said earlier there is no obligation on the part of the Collector under s. 12(6) of the 1955 Act to ascertain who was in actual occupation of the said lands when no alleged purchaser attends at the hearing. The defendants did not attend the hearing though the requirements of the 1955 Act and of the 1955 Rules as to the posting of the petition and of the notice of the date and place and time of hearing of the same had been regularly and properly complied with by the Collector. Therefore, it follows that there was no obligation on the part of the plaintiff to notify the Collector of the occupation of the said lands by the defendants. Further, the plaintiff had always regarded the defendants as tresspassers. We are of the view that the plaintiff was not guilty of any actual fraud.

  1. When one starts with the presumption that the Addendum Order is valid, then the obligation to demonstrate that it is unconstitutional shifts to the Respondents. The Respondents must then demonstrate that the Addendum Order was not discussed at the 61st Meeting. The only evidence that the Respondents brought forth was unilaterally redacted and would necessitate a 114(g) adverse inference;

 

  1. Instead of taking this initial position, the learned HCJ instead proceeded to allow an oblique challenge to the validity of the Addendum Order. In gist, the learned HCJ held that the Addendum Order was unconstitutional as it was (purportedly) not issued in accordance with Article 42 of the FC.

 

As has been demonstrated above, this is tautologous reasoning. The learned HCJ allowed an oblique challenge to the Addendum Order.

 

The 3-month timeline for Judicial Review applications

 

Crucially, the Respondents had the Addendum Order from 29.01.2024:

 

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The Respondents never took out a challenge to the Addendum Order via Judicial Review, nor did they seek quashing orders. Instead, the Respondents sat by and refused to act within the 3-month time period for bringing Judicial Review proceedings (O. 53, r. 3(6) ROC 2012).

 

The Respondents buried their heads in the sand and let matters sit. Caselaw is replete with JRs that were refused leave for not being filed within the 3-month period; why are the Respondents any different?

 

In Govindasamy (Condemned Prisoner) v Union of India (2000) 1 MLJ (Crl) 497, the Indian High Court (whence we derive our law on pardons) observed:

 

26.  The law is well settled that The President of India under Art.72 of the Constitution of India has got power to grant pardon etc. to any person convicted of any offences. This power cannot be exercised by the President on his own. He has to act on the advice of the Council of Ministers.
27.  The President has to look the entire materials, mitigating circumstances, and scrutinise the evidence on record of the Criminal case and can go into the merits. 
28.  The President can also take a different view which will not amount to supersession of any judicial verdict. It will always presume that the President has acted properly, carefully and after an objective consideration of all aspects. The discretion lies with the President. The satisfaction of the President is necessary and not of the court. While deciding the mercy petition, after the conclusion of the President on mercy petition the court cannot substitute its own opinion, even if it comes to different conclusion. Being an executive power, the President has to act as per the aid and advice tendered, by the Council of Ministers. The order of the President cannot be challenged, nor its merits in such matters. Judicial review is permissible only if the conclusion arrived at by the President is arbitrary or mala fide or against the constitutional provisions.

Importantly, the Indian High Court observed that Judicial Review against the President’s (India’s equivalent of our YDPA) decision to grant pardon may be permissible if the President acted in an arbitrary or mala fide manner, against constitutional principles.

 

In Najib’s case, the only “evidence” of unconstitutionality would be the redacted minutes. There can be no basis for refusing him the relief prayed-for, given that this evidence is compromised (and which actually works against the Respondents).

 

In essence, through JR 136, the Respondents raised an oblique challenge. They reversed the issue on its head and attacked the validity of the Addendum Order by alleging that it was unconstitutional (despite not having taken-out a JR to quash the same).

 

This “oblique angle” was discussed by the Federal Court of Australia (the equivalent of our HC) in Johnson v Veterans’ Review Board (2002) 71 ALD 16. Whilst I do not propose to argue that an illegal act of Government would bind it (a public-law Turquand’s Rule scenario), it is arguable that the Respondents profited by their indolence. They refused to take-out a JR and instead, obliquely attacked the Addendum Order (which is presumed validly entered) when Najib sought to rely on it.

 

Conclusion


In conclusion, I am of the view that the learned HCJ fell into 3 serious errors of law. Whether these 3 warrant appellate intervention remains to be seen. I believe they do.

 

I am of the opinion that with the “crucial and necessary” Minutes (Exhibit PS-4) being redacted, the Respondents’ entire opposition to JR 136 crumbles. We simply do not know if the Minutes referred-to (and possibly discussed) the Addendum Order.

 

A 114(e) presumption would arise in favour of Najib, whereas a 114(g) adverse inference would be drawn against the Respondents.

 

I won’t address the issue of whether house arrest is legally-viable. From my reading of the Grounds, the Commissioner of Prisons is empowered to grant a prisoner licensed release (paras. 67-74). I am of the view that a plain reading of these provisions enables house arrest.   

 

QED.

 

GAVIN JAYAPAL

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