Lawyer VK Lingam has told the Court of Appeal that the 2008 inquiry into the ‘Lingam-tape’ incident had denied him the right to reply several allegations, and thus the panel’s findings should be subject to judicial review.

“I merely want to clear my name,” said Lingam, as part of his 80-page submission today. He was representing himself.

azlan Lingam is seeking the review with two former Chief Justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim.

The trio, along with tycoon Vincent Tan and now Umno secretary-general Tengku Adnan Mansor, had been denied leave by the High Court (Special Powers and Appellate Division) on Dec 12, 2008, to appeal the findings of a royal commission of inquiry into the incident.

Tan and Tengku Adnan had filed similar appeals following the High Court decision, as the report had also implicated them and warranting investigations be done on them by the authorities. However, they had withdrawn their appeals before the matter was heard today.

A sixth person namely former prime minister Dr Mahathir Mohamad was also implicated but he chose not to file the judicial review.

There were five terms of reference which is stipulated in the Royal Commission of Enquiry namely:

  • to enquire and ascertain the authenticity of the video clip;
  • to enquire the identity of the speaker, and the person whom he was speaking to in the video clip;
  • to enquire and ascertain the truth or otherwise the content of the conversation;
  • to determine whether any act of misbehaviour has been committed by person or persons identified in the clip;
  • to recommend any appropriate action to be taken against the person identified.

Allegations made after his testimony

Lingam told the Court of Appeal that some allegations against him during the inquiry had been made only after he had testified and thus he could not answer them.

lingam tape panel meeting 031007 mahadev shankar This, he said resulted in him being treated unfairly as he could not reply to those allegations as he was not recalled to give evidence.

"Leave in a judicial review requires a lower threshold test than prima facie. The learned High Court judge had misdirected himself and made a fundamental error of law in this.

"I must be able to show that this application is not frivolous and vexatious which I believe I have done so. Hence, leave should be granted for the case to be heard on its merits at the High Court," he submitted.

He also said that commission member and former judge Mahadev Shankar (left) should have recused himself after it was revealed that his medical expenses had been paid by Lingam on one occasion.

This was revealed by Eusoff during the course of the inquiry.

In addition, Lingam claimed the commission was tainted with biasness when applications were made to disqualify Chief Commissioner Haidar Mohamed Noor, commissoners Khoo Kay Kim and former Chief Judge of Sabah and Sarawak Steve Shim.

“Mahadev had made a disparaging remarks during the commission by accusing me during the enquiry of having “nefarious relationship” with Eusoff, which went far beyond a proper relationship between a Chief Justice and a lawyer,” he said.

He further claimed the commission had allowed his younger brother Thirunama Karasu's evidence of allegations of corrupt practices, where else, the then Anti Corruption Agency and Attorney-General (AG) had closed such cases.

Lingam further claimed the commission had went on further to allow evidence from his former driver D Ramachandran and former secretary L Jayanthi, and he submitted the commission had no power to over ride or interfere with the decision by the then AG and ACA.

Breach of justice

The senior lawyer also claimed the commission had also violated the rules of natural justice when opposition leader Anwar Ibrahim, who produced the video clip along with lawyer Sivarasa Rasiah were not called in as witnesses although they were initially summoned.

“They were material and relevant witnesses because they were the persons who released the clip, and by not having them is a deprivation of vital evidence on the authenticity of the tape.”

Lingam also said the commission's decision not to accept his foreign experts to testify and accepted the testimony of a local expert were also another breach of justice.

“My experts would have given authoritative evidence on whether the video clip was truly authentic.” he said, adding he had given the commission a copy of his experts' report where there were questions put as to chain of evidence on the clip but this was not accepted.

Lingam also questioned the commission's decision in not accepting his testimony that he had not spoken to Ahmad Fairuz (the telephone conversation) on Dec 20, 2001, but it instead had accepted certain portions of the video clip and transcript as evidence that the tape and conversation was authentic.

He alleged the tape had been tampered and edited and was not authentic and hence not true.

“Dr Mahathir himself had testified that he made the decision on his own with regard to the appointment and promotion of judges in question,” he said.

In addition, Lingam said the commission had expanded the scope of inquiry beyond the terms of reference and had gone “on its own frolic”, resulting in bias being committed against him.

Quoting Mahadev, Lingam said the former Court of Appeal judge had said “...our focus here was on the Terms of Reference. We came here to decide but as the enquiry progressed, we had completely lost our focus in the terms of reference”.

Lingam also pointed out that the commissioners did not sign the report and hence it had rendered its findings invalid

He said this was unlike the Anwar (black-eye) incident where all commissioners had signed, rendering the report valid.

Fairuz: I was pre-judged

Ahmad Fairuz’s counsel Mahinder Singh Dulku submitted that the public had pre-judged his client even before the start of the inquiry.

“The whole country had no doubt, despite the video clip (being) not clear... Undoubtedly, bias was committed on behalf of commission as they had pre-judged the issue,” said Mahinder in submission.

Mahinder also said that he was not subject to the tribunal but the commission had tarnished his reputation and standing.

During the inquiry, Ahmad Fairuz had told the five-member commission that the allegation of impropriety against him was “a slander”.

Counsel for Eusoff, Hazman Ahmad, adopted the submissions made by Lingam and Mahinder.

Senior Federal Counsel Azizah Nawawi, submitting in reply to all three submissions, said the findings cannot be challenged as they do not constitute a decision under the Rules of High Court.

She quoted then High Court judge Abdul Kadir Musa in his decision that “it cannot be disputed that it was not the decision of the commission to make the report public. Thus its finding can never be mutated to be decisions.”

Justice Tengku Baharudin Tengku Mahmud is leading a three-member panel in hearing the appeal.

He, along with Justices Mohd Hishamudin Mohd Yunus and Justice Zaharah Ibrahim, deferred in delivering their verdict until tomorrow morning.

SPECIAL REPORT: The Lingam tape