The New Straits Times
PUTRAJAYA: The Federal Court will for the first time have an opportunity to determine whether findings of royal commissions of inquiry into public interest issues can be challenged in a court.
This follows the unanimous decision by a three-man bench in the apex court yesterday to allow a leave application to appeal against a ruling of the Court of Appeal in August last year.
The Court of Appeal, in a 2-1 majority ruling, had allowed an appeal by lawyer V.K. Lingam and two retired judges to reverse a High Court ruling that recommendations and findings of a royal tribunal were not decisions and could not be taken to court.
On Aug 24, the Court of Appeal ruled that Lingam and the two retired judges could challenge the findings of the royal commission set up to investigate the controversial video recording on the promotion of judges.
The majority held that the High Court had used the wrong test in dismissing the trio’s leave application for judicial review against the findings of the commission.
This follows the unanimous decision by a three-man bench in the apex court yesterday to allow a leave application to appeal against a ruling of the Court of Appeal in August last year.
The Court of Appeal, in a 2-1 majority ruling, had allowed an appeal by lawyer V.K. Lingam and two retired judges to reverse a High Court ruling that recommendations and findings of a royal tribunal were not decisions and could not be taken to court.
On Aug 24, the Court of Appeal ruled that Lingam and the two retired judges could challenge the findings of the royal commission set up to investigate the controversial video recording on the promotion of judges.
The majority held that the High Court had used the wrong test in dismissing the trio’s leave application for judicial review against the findings of the commission.
Federal Court judge Tan Sri Alauddin Mohd Sherif, who led the panel, yesterday said the commission had fulfilled the requirement under section 96 of the Courts of Judicature Act 1964 to obtain leave to appeal against the decision of the Court of Appeal.
The Federal Court will now fix a date to hear the appeal and answer the legal question of whether the findings of the commission are reviewable under the High Court Rules 1980.
Earlier, federal counsel Datin Azizah Nawawi, who appeared for the commission, submitted that the legal question posed in the leave application was raised for the first time and its outcome would be of public interest.
However, Lingam, who represented himself, said the application should be dismissed as it did not satisfy the requirement of Section 96.
Lingam said the commission’s application and the legal question only related to an appeal on an interim matter where normally leave to appeal would not be allowed. He highlighted four previous apex court rulings to support his argument.
Lawyer Datuk Hazman Ahmad, who represented retired chief justice Tun Eusoff Mohd Chin, adopted and supported Lingam’s submission.
Counsel Mahinder Singh Dulku, who appeared for retired chief justice Tun Ahmad Fairuz Sheikh Abdul Halim, said it was only right for the judicial review leave application to be heard before a High Court following the Court of Appeal ruling.
He said the court had fixed the matter for hearing in May.
Lingam, Eusoff and Ahmad Fairuz filed a judicial review leave application to obtain an order to quash the whole or part of the commission’s findings.
However, the attorney-general raised a preliminary objection that the commission’s findings could not be reviewed by the court.
On Dec 12, 2008, then High Court judge Datuk Abdul Kadir Musa, allowed the preliminary objection and said the commission had merely presented findings, which should not be misconstrued as a decision.
“Any such finding (of the royal commission) is certainly not a decision in its natural meaning. The findings of the commission remain as ‘findings’ and should not be construed as a decision to which an individual is entitled to seek judicial review to quash the findings,” he had said.
In their report, the five-member panel of commissioners had concluded that the video clip was authentic and that Lingam was the person in conversation with Fairuz over the appointment of judges.
The commission had also recommended that appropriate action be taken against six individuals, namely Lingam, Eusoff, Fairuz, tycoon Tan Sri Vincent Tan, former prime minister Tun Dr Mahathir Mohamad, and businessman and former minister in the prime minister’s department Datuk Seri Tengku Adnan Tengku Mansor, for misconduct.
The commission found that there was prima facie evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act.
Except for Dr Mahathir, the other five had filed for leave for a judicial review in an attempt to quash the inquiry’s findings. However, Tan and Tengku Adnan withdrew their appeals later.
The commissioners — chairman Tan Sri Haidar Mohd Noor, former chief judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong, retired Court of Appeal judge Datuk Mahadev Shankar, former solicitor-general Puan Sri Zaitun Zawiyah Puteh and Professor Emeritus Tan Sri Dr Khoo Kay Kim — sat for 17 days to inquire into the 14-minute video clip.
The cabinet in May 2008 decided to make the report public. The secret video recording was done at Lingam’s house in Kelana Jaya in December 2001 by Loh Gwo Burne, who is now the member of parliament for Kelana Jaya.
The Federal Court will now fix a date to hear the appeal and answer the legal question of whether the findings of the commission are reviewable under the High Court Rules 1980.
Earlier, federal counsel Datin Azizah Nawawi, who appeared for the commission, submitted that the legal question posed in the leave application was raised for the first time and its outcome would be of public interest.
However, Lingam, who represented himself, said the application should be dismissed as it did not satisfy the requirement of Section 96.
Lingam said the commission’s application and the legal question only related to an appeal on an interim matter where normally leave to appeal would not be allowed. He highlighted four previous apex court rulings to support his argument.
Lawyer Datuk Hazman Ahmad, who represented retired chief justice Tun Eusoff Mohd Chin, adopted and supported Lingam’s submission.
Counsel Mahinder Singh Dulku, who appeared for retired chief justice Tun Ahmad Fairuz Sheikh Abdul Halim, said it was only right for the judicial review leave application to be heard before a High Court following the Court of Appeal ruling.
He said the court had fixed the matter for hearing in May.
Lingam, Eusoff and Ahmad Fairuz filed a judicial review leave application to obtain an order to quash the whole or part of the commission’s findings.
However, the attorney-general raised a preliminary objection that the commission’s findings could not be reviewed by the court.
On Dec 12, 2008, then High Court judge Datuk Abdul Kadir Musa, allowed the preliminary objection and said the commission had merely presented findings, which should not be misconstrued as a decision.
“Any such finding (of the royal commission) is certainly not a decision in its natural meaning. The findings of the commission remain as ‘findings’ and should not be construed as a decision to which an individual is entitled to seek judicial review to quash the findings,” he had said.
In their report, the five-member panel of commissioners had concluded that the video clip was authentic and that Lingam was the person in conversation with Fairuz over the appointment of judges.
The commission had also recommended that appropriate action be taken against six individuals, namely Lingam, Eusoff, Fairuz, tycoon Tan Sri Vincent Tan, former prime minister Tun Dr Mahathir Mohamad, and businessman and former minister in the prime minister’s department Datuk Seri Tengku Adnan Tengku Mansor, for misconduct.
The commission found that there was prima facie evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act.
Except for Dr Mahathir, the other five had filed for leave for a judicial review in an attempt to quash the inquiry’s findings. However, Tan and Tengku Adnan withdrew their appeals later.
The commissioners — chairman Tan Sri Haidar Mohd Noor, former chief judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong, retired Court of Appeal judge Datuk Mahadev Shankar, former solicitor-general Puan Sri Zaitun Zawiyah Puteh and Professor Emeritus Tan Sri Dr Khoo Kay Kim — sat for 17 days to inquire into the 14-minute video clip.
The cabinet in May 2008 decided to make the report public. The secret video recording was done at Lingam’s house in Kelana Jaya in December 2001 by Loh Gwo Burne, who is now the member of parliament for Kelana Jaya.
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