The AG is seeking to overturn the grant of leave by the Court of Appeal to the former prime minister enabling him to pursue judicial review proceedings in a bid to serve the remainder of his jail term under house arrest.

A three-member bench chaired by Justice Hasnah Hashim said the court needed time to deliberate after hearing submissions from Attorney-General Dusuki Mokhtar and Najib’s counsel, Shafee Abdullah.

Also on the bench hearing the application, made under Section 96 of the Counts of Judicature Act 1964 (CJA), were Justices Zabariah Yusof and Hanipah Farikullah.

The apex court’s deliberation will revolve around whether the AG has shown that his proposed appeal contains novel legal or constitutional questions of public importance which are being raised for the first time.

Najib, who is currently serving his jail sentence at Kajang prison for corruption in the SRC International case, was present in court for today’s proceeding.

Earlier, the AG raised seven legal questions to persuade the bench that there is merit in his appeal to set aside the Court of Appeal’s decision to allow the introduction of new evidence in the form of a royal addendum issued by the former king.

The new evidence ultimately swayed the decision in Najib’s favour, with the appeals court ruling 2-1 to allow Najib leave to pursue judicial review proceedings.

Today, Dusuki submitted that leave should be granted because there were conflicting decisions in the Court of Appeal as to the approach to be taken in applications to introduce fresh evidence.

“This appeal will be the right opportunity for the apex court to provide clarity on the subject matter and guidance to lower courts,” he added.

Dusuki said the apex court has to decide whether the burden was on the AG at the leave stage of a judicial review proceeding to put all the necessary evidence before the court.

He said the majority in allowing Najib’s appeal had ruled that the government and the AG should have rebutted the evidence on the existence of the addendum.

Shafee, in his submissions, said the questions raised by the AG failed to meet the threshold set by the CJA.

“The questions are academic. The criteria for admission of fresh evidence as per Ladd v Marshall made by the English Court of Appeal in 1954 are well settled,” he said.

Shafee said Najib had shown that a decree dated Jan 29 last year was handed down by the previous Yang di-Pertuan Agong, allowing him to serve the balance of his jail term under house arrest.

“We were not duty bound to produce the evidence. That burden was with the government and the AG. They have a duty of candour,” he added.

Shafee claimed there was an initial attempt to deny the existence of the addendum, but Prime Minister Anwar Ibrahim confirmed the document’s existence soon after the Court of Appeal ruling.

“That attempt to conceal the addendum amounted to forgery and contempt of court. The previous AG (Ahmad Terrirudin Salleh) had misconducted himself,” he said before Hasnah stopped him.

Shafee said many people believed that the Federal Territories Pardons Board decided Najib’s fate.

“Far from the truth. The board merely advises the king who had absolute authority on clemency,” he added.

The Court of Appeal on Jan 6 granted Najib leave to begin judicial review proceedings to compel the government to execute a supplementary decree issued by the former king.

Justices Firuz Jaffril and Azhahari Kamal Ramli held the High Court’s finding that Najib’s affidavits were based on hearsay evidence could no longer stand following new evidence adduced by the former Pekan MP.

They said Najib had obtained a copy of the addendum issued by Al-Sultan Abdullah Sultan Ahmad Shah, when he was the 16th Yang di-Pertuan Agong, after the High Court hearing in July.

Justice Azizah Nawawi, who chaired the Court of Appeal bench, dissented, saying the High Court was correct in ruling that a mandamus order could not be granted against the pardons board.

Azizah said there was no legal provision that could make the board confirm or disclose the existence of a pardon order, including the addendum order.

She also found that Najib had failed to meet the requirements for introduction of fresh evidence.