> Inquiry findings 'cannot be challenged'

The Kuala Lumpur High Court’s Special Powers and Appellate division has ruled that the findings of the Royal Commission of Inquiry into the Lingam clip cannot be challenged.

Justice Abdul Kadir Musa consequently threw out the leave application by prominent lawyer VK Lingam (left) and four others with costs.

On July 16, senior federal counsel Azizah Nawawi had objected to the leave application by Lingam, tycoon Vincent Tan, Barisan Nasional and Umno secretary-general Tengku Adnan Tengku Mansor and former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim for the judicial review.

She had argued that the commission had not made any binding or conclusive decisions and that its findings and recommendations could not be reviewed.

The five applicants had sought to quash parts of the report which have implicated them. They claimed that the commission had prejudged the issues before it and lost its focus by going beyond its terms of reference when writing up its findings.

Abdul Kadir, in his 22-page judgment delivered this morning, noted that the royal commission had conducted the inquiry via a public hearing between Jan 14, 2008 and Feb 15, 2008, and submitted the findings to the Agong.

He said the report was then transmitted to the government which decided to make the report public on May 20.

"It is noted that, until May 19, there was nothing known about the aforesaid ‘findings’ of the Royal Commission. None of the said five commissioners ever made known their ‘findings’ either to any or all five applicants or to the public.

“From the above analysis, I am crystal clear there is no ‘decision’ ever made by the Royal Commission as contemplated in the Rules of the High Court 1980. The commissioners made their ‘findings’ based on their inquiry, based on facts made available to them.”

He said whatever happened after the period, especially from May 9, was entirely beyond the control of the commissioners.

"Thus, in Tun Mohamed Salleh Abas vs Tan Sri Abdul Hamid Omar and others 1988, it was held that neither writ or certiorari or prohibition lie in the case of Commission of Inquiry, and the Royal Commission is in that position."

The judge said the applicants had relied on a New Zealand case to urge the court to accept their proposition that the ‘findings’ of the Royal Commission are reviewable by the court.

"However, parallel provision of a review is not available in our High Court rules to deal with such situations. Even though the principles of the said case were referred to in the Tun Mohamed Salleh Abas case, it was not followed by our Supreme Court," said Abdul Kadir.

"Our court should not import common law from other countries where the provisions of our laws are different...the distinction between Malaysian and common law was also recognised by our then Supreme Court."

Abdul Kadir said he could not agree with the proposition that the ‘findings’ of the Royal Commission are reviewable based on common law of other countries.

Decision to be appealed

The judge also pointed out the ‘findings’ of the Royal Commission should not be construed as ‘decisions’ as contended by the counsel within the ambit of the Rules of the High Court.

"I have no hesitation to conclude that a ‘decision’ may or may not include or based on any of the aforesaid ‘findings’ of the Royal Commission but any such ‘finding’ is certainly not a ‘decision’ in its natural meaning or within the ambit of the Rules of the High Court.

“In the present case, it cannot be disputed that it was not the decision of the Royal Commission to make the report public. Thus the ‘findings’ can never be mutated to be decisions by importing the New Zealand's Judicature Amendment Act 1977 into our aforesaid Rules of High Court."

He said that, if at all it should be interpreted, there must first be metamorphosis and mutation of Malaysian Act.

In allowing Azizah's preliminary objection, Abdul Kadir ruled he would allow the objection as to the distinctions between ‘decisions’ and ‘findings’ of the Royal Commission.

"I firmly hold they cannot be construed to be within the contemplation Rules of the High Court. Even though it cannot be denied that all five applicants are adversely affected in the natural sense by those ‘findings’ of the Royal Commission, they are nevertheless not so ‘adversely affected’ within the context of the Rules of the High Court.

"That being so I hereby refuse leave to all the five applicants and dismiss their applications with costs.”

Eusoff (left) and Ahmad Fairuz (right) will appeal against the decision, while the other three are expected to follow suit.

None of the applicants were in court today. Lingam, who is representing himself, was said to be abroad.

Counsel Mahinder Singh Dulku represented Ahmad Fairuz, while Eusoff was represented by Shahrul Nizam Azwir.

Bastian Vendargon and S Satharuban represented Tengku Adnan, while Tan was represented by LH Chua.

Background to case

When the Royal Commission came up with its findings on May 20, the five-member panel led by former Chief Judge of Malaya Haidar Mohd Nor had recommended action be taken by the authorities against six individuals involved, following revelations that the appointment of judges had been ‘fixed’.

The commission concluded that there were grounds to investigate the six - including former premier Dr Mahathir Mohamad - under the Sedition Act 1961, the Legal Profession Act 1976, the Official Secrets Act 1972 and the Penal Code.

(However, Mahathir did not file for a review of the findings.)

Minister in the Prime Minister's Department Mohd Nazri Abdul Aziz had revealed in Parliament on Dec 3  that the Anti-Corruption Agency had completed its probe on the Lingam tape and that the attorney-general would decide the next course of action.

A total of 21 witnesses had testified before the royal panel, which had also received 116 exhibits and 17 statutory declarations.

The commission found:

The video clip was authentic;

> Lingam was engaged in a phone conversation with Ahmad Fairuz in the presence of businessman Loh Mui Fah and his son Gwo-Burne;

> Lingam had direct influence in the elevation of judges, in particular the appointment of Ahmad Fairuz as president of the Court of Appeal, with the possible aim of his further appointment as chief justice;

> Lingam had asked Tan and Tengku Adnan to be involved actively in the appointment of judges, in particular the appointment of Ahmad Fairuz as the Chief Judge of Malaya and subsequently, President of the Court of Appeal;

> The phone conversation indicated Lingam's "uncanny knowledge" of what could be considered as matters protected under the Official Secrets Act; and

> Tengku Adnan could be Lingam's "source" in the Prime Minister's Department - Malaysiakini.