THE Federal Court here today fixed April 28 to deliver its decision on the Attorney General's application to obtain leave to appeal on the existence of an additional document in the case involving former Prime Minister Datuk Seri Najib Tun Razak.
Bernama reported today, a three-member bench, chaired by Chief Judge of Malaya Datuk Seri Hasnah Mohammed Hashim set the date after hearing submissions by Attorney General Datuk Mohd Dusuki Mokhtar and Najib's counsel Tan Sri Muhammad Shafee Abdullah.
“We will not be making a decision today. We have fixed April 28 for decision at 9.30 am,” said Justice Hasnah, who sat with Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah.
Earlier, Mohd Dusuki in his first appearance in court after his appointment as the AG, proposed seven questions of law, stating that he had met the threshold requirements for leave to be granted down under Section 96 (a) and (b) Courts of Judicature Act (CJA) 1964.
Among the questions are whether Rule 7(3A) of the Rules of Court of Appeal 1994 imposes a higher threshold on parties seeking to introduce fresh or additional evidence by requiring proof of a “determining influence,” which exceeds the “important influence” threshold established in Ladd v Marshall, and whether the burden of proof regarding the existence of disputed fresh or additional evidence lies with the AG in his capacity when acting solely under Order 53 Rule 3(3) of the Rules of Court 2012.
Mohd Dusuki stated that the questions posed are of significant public importance, as the determination by the court on the questions will provide crucial guidance to the courts on the correct approach in dealing with applications for additional and fresh evidence at the appellate stage.
The AG also submitted that the subject matter of Najib's judicial review is non-justiciable.
“This is because the respondent is, in effect, attempting to traverse beyond or behind the express words of the main order, a subject matter that is nonjusticiable to review by this honourable court,” he said.
Mohd Dusuki said the subject matter involves “high prerogative exercisable” by the Yang di-Pertuan Agong, which currently sparked serious debate among the public, further reinforcing the necessity for the court to provide answers to the questions posed.
“This shows that the decision by this honourable court would be of public advantage. Therefore the applicant prays for the leave motion to be allowed,” he added.
Meanwhile, Muhammad Shafee submitted that the questions of law posed by the applicant do not meet the criteria for leave and should be dismissed by the court.
“The respondent cannot be stopped from adducing additional evidence as the applicant has failed to provide it,”Bernama reported him saying.
On Jan 6, in a 2-1 majority decision, the Court of Appeal remitted the case on Najib’s claim of the existence of an additional document purportedly allowing him to serve the remainder of his six-year prison sentence under house arrest, to the High Court to be heard on its merits.
This decision overturned the High Court’s earlier ruling, which had dismissed his application for leave to commence a judicial review regarding the alleged additional document.
The 71-year-old is seeking a mandamus order compelling the respondents to confirm and disclose the existence of the alleged additional document dated Jan 29, 2024.
He named the Home Minister, Commissioner-General of Prisons, Attorney General, Pardons Board for the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya, Minister in the Prime Minister’s Department (Law and Institutional Reform), Director-General of the Legal Affairs Division in the Prime Minister’s Department and the Government of Malaysia as respondents.
The former Pekan member of parliament also sought an order that, should the additional document be proven to exist, all respondents or any one of them should enforce it immediately and transfer him from Kajang Prison to his residence in Kuala Lumpur to serve the remainder of his sentence.
On July 3 last year, Justice Datuk Amarjeet Singh dismissed Najib’s application for leave to initiate a judicial review, ruling that the four affidavits submitted in support of his claim, which included statements by UMNO president Datuk Seri Dr Ahmad Zahid Hamidi and UMNO vice president Datuk Seri Wan Rosdy Wan Ismail, were hearsay and inadmissible as evidence in court.
Najib has been serving his sentence at Kajang Prison since Aug 23, 2022, following his conviction for misappropriating RM42 million from SRC International Sdn Bhd.
The High Court initially sentenced him to 12 years in prison and fined him RM210 million, a decision which was subsequently upheld by the Court of Appeal and the Federal Court.
However, his petition for a royal pardon on Sept 2, 2022, resulted in the Pardons Board halving his prison sentence to six years and reducing his fine to RM50 million. – March 24, 2025
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