PUTRAJAYA: Datuk Seri Najib Razak has been granted permission to initiate a legal bid to review the existence of an addendum order issued by the former Yang di-Pertuan Agong, which he claims to allow him to serve the remainder of his jail sentence under house arrest.
A three-bench Court of Appeal panel led by Datuk Azizah Nawawi, in a split decision, also allowed the former prime minister to adduce additional affidavits to support his application.
Other members of the bench were Datuk Azhahari Kamal Ramli and Datuk Seri Mohd Firuz Jaffril.
Firuz, when reading the majority decision, said the evidence concerned was not available when they (the appellant) initially filed the leave to initiate a judicial review before the High Court last year.
"Reasonable and due diligence must be exercised to ensure that the evidence in question would influence the outcome of the case.
"This principle applies to everyone, regardless of stature, race or religion. It is the appellant's case that they cannot procure the addendum for the purposes of the judicial review application.
"They (the applicant) had written to the six respondents seeking to confirm the existence of the addendum but never received a response," he said.
Firuz said the applicant, who received the purported addendum order, was seeking the consent of the Sultan of Pahang to use the document in the judicial review application they received on Dec 20.
"Without the consent, it was not possible for the applicant to file the addendum into court nor can the applicant compel the sultan to furnish the said addendum.
"The fact that there is no rebuttal affidavit from the respondent challenging the existence nor the authenticity of the addendum order is rather compelling," he said.
Regarding Najib's appeal to reverse the lower court's decision to dismiss his leave to initiate the judicial review, the court stated that the issue of hearsay no longer stood due to the new evidence presented in this case.
The court also ordered the case to be remitted back to the High Court for hearing of a substantive judicial review application.
Meanwhile, Azizah, in her minority decision, said there was no appealable error made by the lower court in ruling that the evidence presented in the hearing was hearsay.
"A lower court judge found that the affidavit is inadmissible as the content was hearsay and not direct evidence.
"I believe in the finding of the High Court judge that there was no legal duty imposed on the respondents, particularly the part to confirm the existence of the addendum.
"There is no provision in the written law or the Federal Constitution that made the respondent confirm on the existence of any pardon order," she said.
On the issue of adducing additional evidence by Najib's eldest son, Datuk Mohamad Nizar, Azizah said it could not be concluded that Nizar had failed to obtain the document, as he frequently had meetings with the Pahang ruler.
The court fixed Jan 13 for case management.
Najib is currently serving a six-year prison sentence after being convicted of misappropriating RM42 million from SRC International Sdn Bhd.
The High Court had sentenced him to 12 years in prison with a fine of RM210 million, and the verdict was subsequently upheld by the Court of Appeal and Federal Court.
However, his prison sentence was halved to six years and his fine was reduced to RM50 million following his petition for a royal pardon on Sept 2, 2022.
Najib later filed an application on an alleged addendum order signed by the 16th Yang di-Pertuan Agong.
The addendum purportedly allowed Najib to serve the remainder of his prison sentence under house arrest. Previously, the High Court had dismissed his application.