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In the said judgment, Justice Yaacob Md Sam is quoted by Malaysiakini as saying that the Court was entitled to take judicial notice that Prime Minister Najib Abdul Razak did not commit any wrongdoing with regard to 1MDB. This was based on the much-publicised press conference by Attorney-General Mohamed Apandi Ali on Jan 26, 2016 and a MACC statement to the same effect (Court verdict – ‘Sun rises in the east’ and Najib did no wrong in 1MDB, Malaysiakini, 23.2.2018).

In justifying the said decision, Justice Yaacob Md Sam is further quoted as saying that judicial notice can be taken as “the sun rises in the east and sets in the west” and that the PM’s said exoneration by the AG and the MACC was similarly so notorious in nature that same can be taken accepted without proof.

With the greatest of respect, it is difficult to comprehend the logic behind the Court of Appeal’s said reasoning.

If the Court of Appeal is right, all prosecutions sanctioned by the AG need not be prosecuted in Court since his decision to prosecute must mean that there is sufficient evidence in his mind against an accused person. If a court can take judicial notice of this, why is there a need to prove such evidence in court?

With respect, I am of the view that it is erroneous to conclude with certainty that the PM did not commit any wrongdoing in relation to 1MDB just because the AG and the MACC seems to think so.

The AG and the MACC are not recognised arbitrators in law. As such, their statements on the PM’s culpability in the 1MDB saga are at best, merely their views on the matter. Such views cannot be taken as gospel as only a recognised Court of law has the power to make a judicial pronouncement on the matter. As such, whether or not the PM committed any wrongdoing in relation to 1MDB can only be conclusively decided by a recognised court of law after considering evidence on the matter.

In any event, it is common knowledge that matters which are judicially noticed can be disputed as can be seen from, e.g. the judgment of eminent former Supreme Court Judge Syed Agil Barakbah SCJ in Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd in which his Lordship had occasion to state as follows,

“The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof. The opponent, however, is not prevented from disputing the matter by adducing evidence if he disputes it.”

The fact that the sun rises in the east and sets in the west is something which cannot be disputed. Whether or not the PM has committed any wrongdoing in relation to the 1MDB scandal, however, certainly can be.

Dated 24th February, 2018.