QUESTIONS POSED BY AG OVER NAJIB'S ADDITIONAL DOCUMENT A PUBLIC IMPORTANCE ISSUE - COURT

PUTRAJAYA, April 28 (Bernama) --The Federal Court ruled today that seven questions posed by the Attorney-General (AG) in the case involving former Prime Minister Datuk Seri Najib Tun Razak's additional document are of public importance which should be ventilated before the court.

Chief Judge of Malaya, Datuk Seri Hasnah Mohammed Hashim, in granting the AG's leave to appeal over Najib’s additional document, said the proposed questions met the threshold requirements under Section 96 of the Courts of Judicature Act (CJA) 1964.

“The questions posed are of public importance and can provide guidance to the courts on the correct approach to adopt in dealing with admission or additional evidence. 

“The question posts are also in relation to the role of the AG in judicial review proceedings, particularly whether the AG is duty-bound under the law to confirm the existence of and supply copies of impugned documents,” she said.

The AG had filed for leave to appeal against the Court of Appeal’s decision, which had allowed Najib to submit additional evidence to support his claim about the existence of an additional document.

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’,  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.

Justice Hasnah, who was presiding over the panel with Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Hanipah Farikullah said, the applicant (AG) also posed a question on whether the AG has an obligation to defend or verify the evidence at the leave stage of the judicial review proceedings in view of the provision of Order 53 of Rules of Court 2012.

On the issue raised by the respondent (Najib) that the applicant would not suffer any prejudice as the applicant was not prevented from raising arguments on the admission of fresh and additional evidence during the substantive hearing at the High Court, Justice Hasnah said the panel disagrees with such a stand by the respondent.  

“This is because by allowing the fresh and additional evidence at the Court of Appeal stage, the applicant would no longer argue in the High Court on the admissibility of the fresh or additional evidence.

“As the High Court would be bound by the Court of Appeal’s decision to admit the fresh or additional evidence, the applicant would, in that context, certainly suffer prejudice. 

“We therefore allow the application for leave in both motions with no order as to costs. Since this is a public interest case, we feel that an early date of the hearing of the appeal should be fixed,” she said, and fixed July 1 and 2 to hear the AG's appeal. 

The AG, as the applicant, had filed the leave application against the Court of Appeal’s ruling. An applicant must obtain leave to proceed with the appeal to the Federal Court.

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 Najib’s application for leave to commence a judicial review regarding the alleged additional document.

On July 3 last year, High Court Judge 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.

-- BERNAMA