Controversial lawyer VK Lingam and two former chief justices were granted leave (permission) by the Court of Appeal as the court found they had been adversely affected by the royal commission of inquiry’s findings.

azlan In the 12-page majority judgment written by Court of Appeal judge Zaharah Ibrahim, she noted that Lingam, along with former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim, had raised arguments on the issue of biasness and excess jurisdiction by the RCI that acted beyond its boundaries.

“In my judgment these are not issues to be dealt with at the leave application stage (at the High Court), which is just the preliminary stage, but later during the substantive stage after leave (permission) is granted (during the High Court hearing), ” she said.

Zaharah, along with Court of Appeal judge Tengku Baharudin Shah Tengku Mahmud, had last August, allowed the appeal and granted leave to the three, and also ordered the hearing to be heard at the High Court.

She also noted the High Court judge used a higher or wrong test in not granting leave to Lingam, Ahmad Fairuz and Eusoff.

“In my view, there is a vast difference between determining whether there is a prima facie case in favour of the appellants (Lingam, Ahmad Fairuz and Eusoff) and such applications are not made vexatiously, which was the test used by the learned High Court judge, and determining whether to show prima facie there is an arguable case (as opposed to a good arguable case) or whether the application was neither frivolous nor vexatious and justifies further argument on a substantive notion,” she said.

“In requiring the appellants to show that there is a prima facie case in their favour and that the application was not made vexatiously, the learned High Court judge had placed a higher threshold in the path of the applicants than they were required to cross based on the authorities of the courts cited by both sides. In doing so the learned High Court judge had clearly erred.”

On Dec 12, 2008, then Kuala Lumpur High Court judge Abdul Kadir Musa had rejected the applications of Lingam, Eusoff, Ahmad Fairuz, tycoon Vincent Tan and BN and Umno secretary-general Tengku Adnan Tengku Mansor to challenge the commission’s findings.

Zaharah’s judgment dated Nov 4, last year and Tengku Baharudin’s judgment was totally in contrast with the dissenting judge Justice Mohd Hishamudin Mohd Yunus’s judgment, the written judgment for which was made available last month.

Hishamudin’s judgment

In Justice Hishamudin’s judgment dated May 4,  he said the five-member RCI did not go overboard or went beyond its jurisdiction by recommending action against the senior lawyer and two former chief justices.

Justice Mohd Hishamudin 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.

The RCI was however granted leave by the Federal Court, the highest court in the land, for it (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, unanimously 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.