The Malaysian Bar - 'No challenging Lingam panel'

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'No challenging Lingam panel'

Wednesday, 14 September 2011 09:36am

©The New Straits Times (Used by permission)
by V. Anbalagan

PUTRAJAYA: The findings of a commission of inquiry appointed by the Yang di-Pertuan Agong cannot be challenged in court.

This follows a landmark Federal Court ruling that findings and recommendations by a five-man commission, which investigated the controversial V.K. Lingam video clip, could not be reviewed.

Judge Tan Sri Raus Sharif, who delivered the unanimous verdict, said the commission was not a decision-making body and such findings did not bind aggrieved parties and the government.

"We are of the view that there is a strong policy consideration that it is against public interest to allow the findings of the commission to be challenged in court," he said.

On Aug 28 last year, the Court of Appeal set aside a High Court ruling that recommendations and findings of a tribunal were not decisions and could not be taken to court.

In their report, the five-member panel of commissioners had concluded that the video clip was authentic and that lawyer Lingam was the person in conversation with former chief justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim over the appointment of judges.

Another retired top judge, Tun Eusoff Mohd Chin, was also dragged into the inquiry over a vacation to New Zealand with Lingam while in office.

Raus, in his 25-page judgment, said findings of the commission were not reviewable as the legal rights of the respondents (Lingam, Ahmad Fairuz and Eusoff), were not directly affected.

Raus said an inferior tribunal made a decision which would adversely affect a party.

"Nevertheless, that does not happen in our case. The commission merely investigates and does not decide.

"Its findings and recommendations are not binding on anybody, not even the government."

Raus said if the proceedings of the commission were allowed to be challenged, the setting up of the commission would be meaningless and a waste of public funds.

"In the video clip incident, the circulation of the footage on the Internet had sparked furious debate, questioning the independence of the judiciary.

"Obviously, it is not in the best interest of the judiciary and the nation to allow such debate and bad perception to continue without the public knowing the truth," he said, reasoning out why the commission was set up.

Federal counsel Datin Azizah Nawawi, who appeared for the commission, said any decision to prosecute persons named in the report had to be based on evidence.

"It is up to the public prosecutor to exercise his discretion as provided for under the Federal Constitution."

Malaysian Bar vice-president Christopher Leong said the respondents were "free to go about their business" since the findings did not have any binding legal effect.

However, he said the Bar Council would pursue its action against Lingam for professional misconduct before the disciplinary board.

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