18. Judicial Review Possible?

by The Star

Datuk Seri Tengku Adnan Tengku Mansor should be granted the right to seek a judicial review on the findings of the Royal Commission of Inquiry into the V.K. Lingam video clip.

Lawyer Datuk Bastian Vendargon said that his client, Tengku Adnan, was entitled to do so under the Rules of the High Court.

“Order 53 Rule 2(4) of the Rules of the High Court 1980 provides that ‘any person who is adversely affected by the decision of any public authority should be entitled to make the application’,” he said.

He said Tengku Adnan, the Barisan Nasional and Umno secretary-general, had been affected by the commission’s finding in that “his reputation is damaged and he is also exposed to the possibility of criminal proceedings”.

To the question of whether the findings of the Royal Commission was amendable “must be viewed in the light of current prevailing authorities and jurisprudence.”

He said this when arguing in his application for leave for judicial review to quash the commission’s findings in May that implicated six persons.

The report had recommended that the six be investigated under the Prevention of Corruption Act, the Sedition Act, the Legal Profession Act, the Official Secrets Act and the Penal Code.

The six are Tengku Adnan, lawyer Datuk V.K. Lingam, tycoon Tan Sri Vincent Tan, former Chief Justices Tun Eusoff Chin and Tun Ahmad Fairuz Sheikh Abdul Halim and former Prime Minister Tun Dr Mahathir Mohamad.

All except Dr Mahathir are seeking judicial review of the findings.

Previously, the Attorney-General’s Chambers, represented by Senior Federal Counsel Azizah Nawawi, had objected to the leave application saying that the commission's findings cannot be challenged or reviewed.

High Court judge Justice Abdul Kadir Musa set Sept 9 for continuation of the hearing.

Earlier,

by New Straits Times

The Royal Commission of Inquiry into the Lingam video clip recording did not make any binding or conclusive decision, the government contended in court yesterday.

It merely made findings and recommendations of fact, which are not reviewable because they are not decisions, the High Court heard. 

Senior federal counsel Azizah Nawawi submitted that the commission was merely performing a statutory function tasked upon it.

Azizah was submitting on behalf of the Attorney-General's Chambers before judge Datuk Abdul Kadir Musa, raising objections to an application for judicial review filed by five individuals who were recommended to be investigated following the findings of the commission.

The five were lawyer Datuk V.K. Lingam, tycoon Tan Sri Vincent Tan, former minister in the Prime Minister's Department Datuk Seri Tengku Adnan Tengku Mansor and retired chief justices Tun Ahmad Fairuz Sheikh Abdul Halim and Tun Mohd Eusoff Chin.

The five had filed applications separately last month to quash the findings of the royal commission, which recommended that the five, together with former prime minister Tun Dr Mahathir Mohamad, be investigated under the Prevention of Corruption Act, the Sedition Act, the Legal Profession Act, the Official Secrets Act and the Penal Code.

Lingam was implicated in the 14-minute controversial video clip, which the commission said showed Lingam in conversation with Ahmad Fairuz over judicial appointments.

Azizah said the Rules of the High Court 1980 allowed any person adversely affected by the decision of any public authority to be entitled to make such application.

Azizah said the first issue was to ascertain whether the findings and recommendations of the commission fall within this ambit.

"The commission was empowered to take evidence upon oath and to call persons and documents. They then reported on facts found in the investigations and made recommendations." 

Azizah reiterated that the commission did not make any conclusive or binding decision. She also submitted on the parties named as respondents in the leave application.

While Lingam and Tan had named the commission as a whole, the other three had named the members of the commission as the respondents.

"Under Section 21 of the Commission of Enquiry Act 1950, no commissioner shall be liable to any suit or other proceedings for any act done by them as commissioner," she said, adding that protection was given to the commissioners.

She further submitted that the findings by the commissioners were not formulated by any individual commissioner but was prepared by the commission as a whole.