The lone Court of Appeal judge who dissented on the application for a judicial review of the Royal Commission of Inquiry decision on the Lingam tape affair said the five-member RCI did not go overboard in its jurisdiction by recommending action against the senior lawyer and two former chief justices.

In his written judgment dated May 4, Justice Mohd Hishamudin Mohd Yunus states the recommendations of the RCI do not fall within the realm of the meaning of “decisions”, and ruled them as “findings” that are non-reviewable.

“In my judgment, the learned High Court judge was correct in law in refusing leave (permission) that was applied for by the appellants pursuant to Order 53 rule 3 (1) of the Rules of the High Court.

“In my view, Justice Abdul Kadir Musa was correct in his decision that the findings of the RCI are not amenable to judicial review, as the findings are not ‘decisions’ for the purpose of Order 53 rule 3(4) of the Rules of the High Court,” ruled Justice Hishamudin in his 32-page judgment.

azlan On Aug 24 last year, the Court of Appeal in a 2-1 majority decision allowed lawyer VK Lingam and former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim leave to seek a review of the RCI’s findings.

Justice Tengku Baharudin Shah Tengku Mahmud, who headed the three-member bench along with Justice Zaharah Ibrahim also ordered the case to be heard on its merits by the High Court, while Justice Hishamudin dissented.

No grounds were given for their decision until Justice Hishamudin dissenting judgment came out last week. this month. Justice Tengku Baharudin and Justice Zaharah are yet to write the grounds of their judgment.

The Federal Court, the highest court in the land, has unanimously granted leave (permission) for the RCI to challenge the Court of Appeal decision.

A three-member bench led by Court of Appeal president Justice Alauddin Md Sheriff along with Justices Zulkefli Ahmad Makinuddin and Abdull Hamid Embong allowed the application by the RCI, which was represented by senior federal counsel Azizah Nawawi.

The panel also allowed a question of law, which is a novel issue, namely: ‘Whether the findings of the Commission of Inquiry, under Section 3 of the Commission of Inquiry Act 1950, are reviewable under Order 53 of the Rules of the High Court 1980'.

However, a date has yet to be fixed to hear the appeal over this important decision at the Federal Court.

Hishamudin’s and Kadir’s judgments to be used

Justice Hishamudin further in his judgment ruled that the commission did not make any decision, let alone making a decision that affects the rights of, or that impose any liabilities on, the appellants.

“The role of the commission was only to investigate, to make findings, and, if need be, to make recommendations; and ultimately to submit a report to His Majesty (the Yang di-Pertuan Agong). Until the report  was made available to the public, the public (including the appellants) had no access to the report and had no knowledge as to the contents of the same.

“The government was not bound to act on the findings and recommendations of the commission; or even to make public the report of the commission (although, in practice, the government does not normally make public the report),” he said.

Justice Hishamudin’s and then-Justice Abdul Kadir’s judgments will be used as a basis for the RCI to challenge the Court of Appeal decision.

Abdul Kadir then ruled that the RCI findings cannot be challenged , and it similarly ruled the  commission had not made any binding or conclusive decisions and that its findings and recommendations could not be reviewed.

'RCI did not exceed its powers'

Justice Hishamudin also said the terms of reference of the commission are framed in wide terms, namely to determine whether any act of misbehaviour has been committed by persons identified or mentioned in the video.

“I am not persuaded that the commission had exceeded its powers. The appellant Datuk VK Lingam has been identified by the  commission in its findings as the person in the video clip. Tun Eusoff Chin’s name was mentioned by Datuk VK Lingam in the video clip.”

vk lingam and eusoff chin holiday photo 180108 “The commission in its report explains the relevance of the investigation into the New Zealand holiday as follows - After hearing submissions, the commission took the view that matters

relating to the New Zealand trip were relevant to establish the degree of relationship between Lingam and Eusoff which had a direct bearing on certain parts of the conversation shown in the video clip.

“It was also relevant to the issue of credibility. As a result, the commission allowed the questions posed by Bar Council representative Mr Robert Lazar on the New Zealand trip,” he said.

While Lingam’s application of a New Zealand court case as his grounds of review was accepted by the two Court of Appeal judges who ruled in their favour, Justice Hishamudin opted to use a local precedent set in the Salleh Abas case.

“The above may very well be the legal position in New Zealand. But, with respect, I prefer to follow the authorities that I have referred to earlier, in particular, the Supreme Court case of  Tun Salleh Abas,” he ruled in saying the commission did not widen its scope of power.

He later dismissed the appeal brought forward by Lingam, Ahmad Fairuz and Eusoff

RCI executive summary

After hearing 21 witnesses, 116 exhibits and 17 statutory declarations the RCI found the tape was authentic, the person speaking over the phone was Lingam and the person on the other end talking to Lingam was Ahmad Fairuz.

The commissioners also found that the content of the conversation in the video clip is true in substance and in material particulars and it also found there was sufficient evidence of misbehaviour on the part of certain individuals or personalities identified or mentioned in the video clip.

Following this, it recommended a course of action to be taken against the person or persons identified or mentioned in the video clip, as there is sufficient cause to invoke the Sedition Act 1948, the Legal Profession Act 1976, the Official Secrets Act 1972 and the Penal Code against the various individuals mentioned in the video clip.

“We do not discount the possibility of 16 other laws being contravened. We leave it to the Attorney-General, Malaysia and the Malaysian Bar Council to take the appropriate actions against the personalities implicated.  

“Additionally, we are proposing to the government for the necessary reforms including the establishment of a Judicial Appointments Commission,” the commission reports states.

The Aug 24, 2010 Court of Appeal decision has serious ramifications as it would allow other parties to challenge the findings made by past RCIs formed.