Lawyer Shafee Abdullah said the AG objected to Najib’s application for leave on grounds that the supporting affidavits were based on hearsay evidence, speculative, and that the addendum order purportedly did not exist.
“Even at the Court of Appeal, he (the AG) did not confirm its existence but finally made a concession in the Federal Court,” Shafee told a three-member bench chaired by Chief Judge of Malaya Hasnah Hashim.
Also hearing the appeal were Justices Zabariah Yusof and Hanipah Farikullah.
At the last hearing on July 2, Shafee submitted that AG Dusuki Mokhtar had conceded that the addendum existed, and that he was only disputing its genuineness and validity.
The AG is appealing to set aside a majority 2-1 ruling on Jan 6 that allowed Najib’s application to adduce additional evidence and order the High Court to hear Najib’s judicial review.
Najib wants the government to implement the Jan 29, 2024 order in the addendum which allows him to serve the remainder of his jail sentence under house arrest.
Shafee said Najib should be granted leave as he had an arguable case.
The lawyer said his client was sent from “pillar to post” as the putative respondents refused to give an affirmative reply on whether the addendum order exists.
Shafee said the AG should have provided the addendum but the High Court judge said he had no duty of candour at the leave stage, which was a “tragedy”.
“The judge went on to say we were on a fishing expedition,” Shafee added.
He argued that the AG had a duty of candour to disclose the addendum order and said the AG was guilty of not enforcing the royal decree.
Najib got wind of the addendum order soon after the Federal Territories Pardons Board announced in early February last year that his 12-year jail term was halved and the RM210 million fine reduced to RM50 million.
He is currently serving a six-year jail sentence in connection with the SRC International case.
Najib filed leave for judicial review last April, relying on affidavits filed by Umno president Ahmad Zahid Hamidi and Pahang menteri besar Wan Rosdy Wan Ismail based on what they had read on Tengku Zafrul Aziz’s mobile phone.
The High Court however refused to grant leave last July.
Najib’s son, Nizar, filed an affidavit just before the Court of Appeal hearing in support of his father’s application to also adduce fresh evidence, which the appellate court allowed.
When replying to Shafee’s submission, senior federal counsel Shamsul Bolhassan acknowledged that Dusuki had confirmed the existence of the addendum when he was addressing the bench on July 2.
Hasnah then said the matter of fresh evidence was no longer an issue.
Shamsul however submitted that it was not academic as the criteria to admit fresh evidence were not fulfilled.
“The case laws referred to by Shafee on the duty of candour by the public authorities are also not relevant,” he said, adding that the AG was standing by the written submission filed earlier.
Hasnah said parties would be informed of the decision date.