The Federal Court today allowed the Royal Commission of Inquiry (RCI) that heard the "VK Lingam tape" affair to contest the decision of an appellate court that last year allowed Lingam and two former chief justices to challenge the RCI findings.

palace of justice istana kehakiman A three-member bench led by Court of Appeal president Justice Alauddin Md Sheriff today allowed the application by the RCI, which was represented by senior federal counsel Azizah Nawawi.

The other members were Justices Zulkefli Ahmad Makinuddin and Abdull Hamid Embong.

"The court is allowing this leave application, under section 96 of the Federal Court Rules, to hear the appeal and on the question solitary which has been decided," Justice Alauddin ruled.

The panel 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 Rule of High Court 1980.'

With today's decision, the expected hearing into the merits of the challenge to the RCI findings by the two former Chief Justices, Eusoff Chin and Sheikh Ahmad Fairuz Sheikh Abdul Halim, and Lingam before the High Court, which had earlier been scheduled for May, will have to be deferred until the RCI appeal is heard.

Question of general principle

Azizah had submitted that leave should be granted as it was a question of general principle that was not previously decided by the Court of Appeal.

"A decision on the RCI by this court will be of public interest," she said.

Several quarters, including senior lawyer Karpal Singh and the Bar Council, had questioned the Court of Appeal's decision in allowing the applicants to challenge the findings of the commission, as they claimed a decision by the RCI cannot be challenged.

If leave was not granted today, it could well open another Pandora's Box for parties to challenge the findings of RCIs set up by the Yang di Pertuan Agong.

Recent RCI panels established included the Anwar Ibrahim "black eye" incident and the forcing by police of a female detainee to squat in the nude.

At present there is another RCI looking into the death of DAP political aide Teoh Beng Hock, who was found dead outside the Malaysian Anti Corruption Commission office in Shah Alam on July 16, 2009. The RCI is due to sit next Monday.

Last year, the Court of Appeal in a two-to-one decision allowed Lingam's appeal to challenge the RCI’s findings.

azlan Justice Tengku Baharudin Shah Tengku Mahmud and Justice Zaharah Ibrahim ruled in favour of Lingam, Eusoff Chin and Sheikh Ahmad Fairuz ( photo ). Justice Mohd Hishamudin Mohd Yunus disagreed.

Lingam, who appeared before the Federal Court himself, submitted that leave should not be granted by the Federal Court, as this was an interlocutory matter that had emerged from the High Court's preliminary stage.

"The Court of Appeal merely applied a settled law on the grant of leave as laid down by the Supreme Court and the Federal Court. No leave to appeal to the Federal Court is granted in matters involving settled law and involving interlocutory matters.

"Hence, the matter should proceed to be heard on its merits at the High Court. If the RCI wants to appeal, it can do so at the Court of Appeal and before this apex court," Lingam said.

Lingam argued that findings also constituted decisions and also continued to question the authenticity of the video tape recording, allegedly of himself on a mobile phone, which the RCI had ruled as authentic.

"There is no alleged misbehaviour but injustice has been created as our reputation is at stake," he submitted.

Lawyer Mohd Hazman Ahmad appeared for Eusoff while Mahinder Singh Dooku appeared for Ahmad Fairuz.

Mahinder submitted the question of law proposed by Azizah was not a question but a fact, as this is not a jurisdictional issue

Long saga

On Dec 12, 2008, the Kuala Lumpur High Court rejected the applications of Lingam, Eusoff, Ahmad Fairuz, tycoon Vincent Tan and Umno secretary-general Tengku Adnan Tengku Mansor, to challenge the RCI’s findings.

royal commission on lingam tape members 121207 Tan and Tengku Adnan withdrew their applications before the appeals were heard by the Court of Appeal.

High Court judge Justice Abdul Kadir Musa ruled that a 'decision' may or may not include or be based on any of the RCI panel's 'findings', but that 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."

Kadir, in allowing the AG's preliminary objection, ruled he would allow the objection as to the distinctions between 'decisions' and 'findings' of the RCI.

On May 2008, the inquiry findings had recommended investigation by the authorities on six individuals including, including Lingam, Eusoff and Sheikh Ahmad Fairuz, who lodged the appeal.

The others are Tan, Tengku Adnan and former premier Dr Mahathir Mohamad. However, Mahathir did not seek a judicial review of the findings.