Sunday, December 14, 2008

Lingam Tape: No Review of Commission Findings (updated)

KUALA LUMPUR: Two former Chief Justices, a prominent lawyer and two others failed to get a court order to challenge the findings of the Royal Commission of Inquiry into the V.K. Lingam video clip that implicated them.

High Court judge Justice Abdul Kadir Musa refused leave applications by the five for a judicial review of the findings.

The five are former Chief Justices Tun Eusoff Chin and Tun Ahmad Fairuz Sheikh Abdul Halim, lawyer Datuk V.K. Lingam, tycoon Tan Sri Vincent Tan and Barisan Nasional and Umno secretary-general Datuk Seri Tengku Adnan Tengku Mansor.

Justice Abdul Kadir said he could not agree with the proposition that the findings of the Royal Commission were reviewable based on the common law of other countries being applicable in Malaysia.

“Our court should not import common law from other countries where the provisions of our laws are different, as decided in case laws,” he said.

In dismissing all the applications with costs, Justice Abdul Kadir said he was crystal clear that there was no decision ever made by the Royal Commission.

“They only conveyed their said findings in the report by submitting it (the report) to the Yang Di-Pertuan Agong,” he said.

He said the findings should not be construed as decisions within the ambit of Order 53 Rule 2(4) of the Rules of the High Court 1980.

He said the Commissioners made their findings based on their inquiry into the facts made available to them.

“Such findings was never ever made known to any of the five applicants between the period of Jan 14 and May 19.

“Whatever happened after that period, especially as from the May 9 (the date the report was submitted to the King) is entirely beyond the control of those Commissioners,” he said.
He said it cannot be disputed that it was not the decision of the Royal Commission to make the report public.

The judge then allowed the preliminary objection by Senior Federal Counsel (SFC) Azizah Nawawi over the leave application by the five who wanted to quash the relevant parts of the report which implicated them.

“I have no doubt that public interest is involved, I rule that Attorney-General got necessary locus to oppose the application,” he said.

On July 16, SFC Azizah had argued that the Royal Commission did not make any binding or conclusive decisions and that its findings could not be reviewed.

Justice Abdul Kadir further said that “even though it cannot be denied that all the five applicants are adversely affected in a natural sense by those findings of the Royal Commission, they are nevertheless not so adversely affected within the context of Order 53.”

The Royal Commission had commenced its inquiry by way of a public hearing on Jan 14. It concluded on Feb 15 after hearing testimony from 21 witnesses and receiving more than 100 exhibits and over 15 statutory declarations.

The Royal Commission in May had found, among other things that the video clip was authentic. It found that Lingam was the person in the clip and was in a telephone conversation with Ahmad Fairuz.

It had recommended in its report for six persons to be investigated under the Sedition Act, Legal Profession Act, Official Secrets Act and Penal Code.

In asking for the review in August, Lingam said he had at least 12 reasons to persuade the High Court to consider reviewing the findings of the Royal Commission of Inquiry.

“The commission had acted in excess of jurisdiction by going beyond its terms of reference. It took into account irrelevant matters and completely lost its focus,” Lingam had said.

He had argued that the disparaging remarks made against him by commissioner Datuk Mahadev Shankar was clearly infected and tainted with bias when he (Mahadev) continued to “sit in participation and adjudication at the inquiry and made perverse findings” against him.

He said there were also apparent bias on the part of commissioners Prof Tan Sri Dr Khoo Kay Kim and Tan Sri Steve Shim Lip Kiong.

“There were breach of rules of natural justice when the commission did not allow Datuk Seri Anwar Ibrahim, lawyer R. Sivarasa and Anwar’s personal assistant Sim Tze Tzin who were already summoned as witnesses to give evidence at the inquiry.

“The evidence of the three under cross-examination of my counsel would establish that the video clip was edited,’’ Lingam had said.

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