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©The Star (Used by permission)
Reflecting on the law by Shad Saleem Faruqi

The royal commission appointed to investigate the alleged Lingam tapes will have wide powers and can draw conclusions, but it has no power to prosecute the wrongdoers.

THE Prime Minister has announced that a Royal Commission of Enquiry shall be appointed to investigate issues surrounding the alleged judicial-appointment-brokering videotape. 

Calls for assembling a Royal Commission are quite numerous and understandably the Government turns down these requests most of the time. 

One can, however, recollect the Royal Commissions into the salaries and conditions in the public service (1965); local authorities (1968); teaching services (1971); the collapse of the Butterworth jetty (1988); fire in a Kedah religious school (1989); the Bright Sparklers blaze (1991), the custodial injuries suffered by Datuk Seri Anwar Ibrahim (1999); and the 2004 inquiry into the police force.  

Prominent refusals were for the BMF scandal (1985); losses by Bank Negara of billions of ringgit in foreign exchange (1992-93); the Highlands Tower collapse (1993) and the Batu Buruk incident (2007). In the BMF fiasco, instead of a Royal Commission, a special investigation committee was appointed which submitted a very courageous and frank report.  

Appointment: Royal Commissions are appointed by the Yang di-Pertuan Agong under section 2 (1) of the Commissions of Enquiry Act 1950 (Act 119).  

Role of PM: A literal interpretation of section 2(1) indicates that the appointment of the Commission lies within the King’s personal discretion and in the exercise of it he is not guided by counsel from his Prime Minister. 

Such a construction is seriously flawed for a number of reasons. First, in our system of constitutional monarchy, hundreds of laws confer on His Majesty a vast array of executive, legislative, judicial and quasi-judicial powers. If these powers are literally interpreted, then the Monarchy would be converted to an absolutist, despotic institution. 

The correct position is that in the exercise of most of his powers, the role of the Monarch is largely symbolic, nominal and formal. The King reigns, he does not rule. 

Secondly, the requirement to act on advice is embedded in Article 40 (1) of the Constitution which states that “in the exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution”. 

Thirdly, in Article 40 (2) and in some other parts of the Constitution, the King is conferred some discretionary powers. Appointment of a royal commission is not one of them.  

Object: The Commission’s terms of reference are prescribed by the Government. Under Section 2 of the Act, the Commission can enquire into the conduct of any federal officer; any public service department or institution; or into any matter, enquiry into which would be for the public welfare. 

Commissioners: One or more Commissioners may be appointed. Their qualifications are not prescribed by law. They are deemed to be public servants. Their work is akin to judicial proceedings and they have the powers of a First Class Magistrate. In the performance of their functions, they enjoy absolute immunity. 

Commission’s powers: Act 119 confers on the Commission vast powers to search out and seek the truth. The Commission can: 

> SUMMON any person to give evidence or produce any document or other thing in his possession; 

> ISSUE a warrant of arrest to compel the attendance of any person who defies the Commission’s summons and to order him to pay costs; 

> PROCURE and receive evidence, whether written or oral, and require it to be on oath. False evidence could be the subject of a criminal prosecution; 

> IMPOSE a fine of not more than RM50 on any person who fails to give evidence or produce a document or other thing; 

> ADMIT evidence otherwise inadmissible in civil or criminal proceedings; 

> REQUEST the Yang di-Pertuan Agong to direct the IGP to detail police officers to attend upon the Commissioners; to preserve order; and to serve summons issued by the Commission; 

> PUNISH contemnors with a fine not exceeding RM100 or imprisonment not exceeding three months. This power is to be exercised after giving the accused a proper hearing; and 

> REQUIRE the Public Prosecutor to cause any matter relevant to the enquiry to be investigated.  

Procedure: Any person whose conduct is the subject of enquiry is entitled to be legally represented at the enquiry. The Attorney-General is entitled to appear before the Commission. Any other person who wishes to appear may apply for leave to be represented by a lawyer. 

Witness protection: The Act protects all persons who appear before the Commission as witnesses. Their evidence cannot be used to incriminate them in later proceedings. Except on a charge of perjury, all evidence given to the Commission is absolutely privileged in civil and criminal proceedings (Act 119, sections 21 and 11). 

Role of public: Subject to the directions of His Majesty, the Commission can admit or exclude the public and the press. 

Weaknesses in the law: The findings of a Commission are not binding on the Government. The Commission Report may be kept under wraps and need not be made public. 

The Commission can discover facts, draw conclusions and make recommendations. But it has no power to prosecute the wrongdoers. That discretion remains with the Attorney-General. 

The protection against self-incrimination given to witnesses under section 11 of Act 119 leads to the shocking result that evidence given by an offender to the Enquiry can never be used against him in any civil or criminal proceeding. Unless there is supporting or corroborating evidence, prosecution of a witness for crimes he may have committed will not be easy.  

If a witness helps the Commission to ferret out the truth, he will win protection in respect of his testimony. Immunity will be the price the Government will have to pay for obtaining the truth. The usefulness of a Royal Enquiry into a criminal matter is, therefore, open to question.  

Section 11 highlights an irony in the law. Desirable rules often lead to undesirable results. 

Dr Shad Faruqi is a Professor of Law at the Faculty of Law, UiTM. 

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