September 13, 2011
Haider RCI on VK Lingam Video Findings Upheld: It is against the Public Interest to allow Judicial Review
by Joseph Sipalan@http://www.malaysiakini.com
Sep 13, 11
11:18am
The Federal Court today unanimously ruled that a court of law cannot review the findings of the Royal Commission of Inquiry into the infamous VK Lingam video. In setting aside a Court of Appeal order, the three-member panel found that the commission’s role is merely to investigate the issue and not to come to any decision.
“But there is another more important reason. 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 our courts,” said Justice Md Raus Sharif, who read out the landmark judgment.
He pointed out that a number of commissions had been set up under the Commission of Enquiry
Act 1950, with none to their knowledge that were challenged by way of a judicial review. Raus stressed that, should a judicial review be granted on the commission’s findings, it would render the work of such a body a “meaningless exercise, and also a waste of public funds”.
The whole purpose of setting up a commission is to carry out a factual investigation and to make recommendations for the betterment of the judiciary, which has suffered a severe blow in terms of public confidence, he noted.
“Obviously, it is not in the best interests of the judiciary and the nation as a whole to allow such debate and bad perceptions to continue without the public knowing the truth of the matter,” reads the judgment.
“Now that the commission has come out with its findings, it does not make any sense if such findings are allowed to be reviewed by our courts.”
The panel also rejected the argument posited by Lingam and the other two respondents that they were adversely affected by the royal commission’s findings. The judges pointed out that the findings and recommendations remain just that. They acknowledged that, by stating that there was sufficient grounds to take action against those mentioned in the video under the Sedition Act 1972 and the Penal Code, the commission had made “strong findings” that implicated the respondents.
However, the panel maintained that the commission’s findings “remain mere findings”, and do not directly affect or deprive the respondents of their legal rights.
“Thus, in … VK Lingam’s case here, despite the commission’s findings that he had committed criminal misbehaviour, his status as an advocate and solicitor is intact. The fact that he is appearing before us is a clear testimony that his legal rights have not been adversely affected.
“Similarly, for … Ahmad Fairuz Dato Sheikh Abdul Halim and …Mohd Eusoff Chin, it is not shown to us that they have been deprived of the benefits which they had been permitted to enjoy before. Clearly, the commission’s findings have not affected their legal rights and (are) therefore not amenable to judicial review.”
Commission different from tribunal
Justice Raus, in further explaining the judgment, said the panel could not agree with Lingam’s 
argument that the commission is similar to “any other inferior tribunal” where its decisions are always subject to judicial review.
The various tribunals set up are open to judicial review as the decisions made are “legal decisions”, unlike in the case of a RCI which “merely investigates and does not decide”, Justice Raus said.
“Its findings and recommendations are not binding on anybody, not even the government,” he added.
The Apex Court’s decision brings to a close a long-running drama surrounding the controversial video, in which the commission implicated six people for alleged fixing of judicial appointments.
Aside from Lingam, Eusoff and Ahmad Fairuz, the RCI recommended that probes be carried out on tycoon Vincent Tan, UMNO secretary-general and then Minister in the Prime Minister’s Department Tengku Adnan Tengku Mansor and former Prime Minister Dr Mahathir Mohamed. Mahathir was the only one in the group who did not seek a judicial review of the commission’s findings.
Din Merican: the Malaysian DJ Blogger 
Mark my word, no action will be taken against six individuals – Lingam, Eusoff, Fairuz, tycoon Vincent Tan, Mahathir Mohamad, Vincent Tan and Tengku Adnan Mansor – for misconduct. So much of time and money was spent on the RCI and yet Najib is reluctant to act against the six scoundrels.
There will be No review of the finding of Royal Commission on the Death of Teoh Beng Hock as well, given this judgement by the Federal Court.That means the RCI’s finding that TBH committed suicide stands. No justice for Beng Hock.
Najib, in future, if you have no guts to act on the findings of RCI, please for heaven’s sake don’t form such a panel or RCI and instead use the money to assist the poor who need it very badly.
If this gang of 6 fixers can be charged in bolehland court, I will eat 7 pairs of old leather shoes…1 extra pair as bonus dessert, for the conviction and jail term of apanama.
What’s new, nothing except we change the current government…
Guys,
I like my learned friend in New York, Mongkut Bean, who is a Doctor of Jurisprudence(JD) to comment on this Federal Court ruling. As a layman, I am of the view that the Federal Court is respectful of the integrity of Royal Commissions appointed by our King to deal with issues of public interest. Commission findings cannot, therefore, be subject to judicial review. In this case, VK Lingam cannot ask to the court of law to amend the findings of the Haider Commission on the VK Lingam Video.–Din Merican
This is a strange twist in the long standing saga. On one hand we have Lord Lingam vehemently protesting that his good name has been smeared by findings of the Royal Commission and wants a review (meaning ‘judicial review’ a tool some say is available as a check against an executive decision) to clear his name. Then we have Mahathir, the master puppeteer in the background who has chosen to remain silent on the issue of judicial review. And today the highest court in the country has come out with yet another decision which should not surprise anyone. To its credit it has found another way out. Lord Zaki, who must be glad that his tenure as Chief Judge was up, apparently has left his mark. Another feather in your cap, Zaki? [Delete under new rules for this blog]
The issue of judicial review, its place and its scope differs from jurisdiction to jurisdiction depending on the position we take as a society seeking to organize and structure itself consistent with our own strain of democratic values. If as a society we attach paramount importance to doctrines like the separation of powers, checks and balances, we may want to use judicial review as a means to check on the excesses of the other branches of government.
The country’s highest court has today chosen to make a policy decision which then cannot be challenged. A very smart decision by Lord Zaki. With that decision, Lord Lingam can go back to his penchant for red wine or port wine (a habit he picked up during his dining days at the Inn) and I am sure he has un-cocked more than a few bottles of expensive red wines to last the evening to share with his guests whose names you would have no problem in finding in ‘Who is who in Malaysia”.
But if you guys think this is all about Lingam, then you are sadly mistaken. It is larger than VK Lingam. Because with this landmark decision, the only tool available to us poor mortals to check the tyranny of the majority is now gone. It is off the table – like forever. Now let’s bring out our nira made from nipah palm that line the banks of the river behind Wat Siam and our toddy to drown ourselves in sorrow.
________
Mongkut Bean,
Am glad that nothing happened on 911 Memorial Day in New York City. What is GW Bush doing beside Obama? That guy made the world a less safe place with his war on terror policies.
I thought the no judicial review applies only to Findings of Royal Commissions in Malaysia. Please for our education elaborate on your view expressed in the last paragraph.Lingam is happy.But the Government and the A-G can start investigations on the Magnificent-6 including our famous master puppeteer and fellow Kedahan, if they wish.But that is not likely.–Din Merican
“I thought the ‘no judicial review’ applies only to findings of Royal Commissions in Malaysia.” Dato Din Merican
Correct. That would be the narrow interpretation. The highest court in the country by that decision has narrowed the scope of judicial review. It has tucked the tool of judicial review safely to one corner, narrowing its scope and downgrading its use and significance as a tool and ground that decision on policy considerations. From there it is but one short step towards the next which is to negate challenges that may be mounted in response to what we see as the tyranny by the majority.
Critics of democracy may say “So what”? Isn’t democracy essentially tyranny of the majority over the minority?
I hope that this landmark decision by the Federal Court is not an attempt “to negate challenges that may be mounted in response to response to what we see as the tyranny of the majority over the minority” (Bean). It is to protect the integrity of Royal Commissions and ensure that their findings cannot be challenged in our courts.
Mr. VK Lingam seemed to be very pleased with this decision. Now the question is whether the Malaysian Bar Council will commence its disciplinary action against a member of its fraternity. From one compatriot to another, my advice to Mr. Lingam is “thamby aya, make yourself scarce.” You will NOT be a great loss to the legal profession. Mongkut Bean, any comment on this?
Its established norm, that if any public tribunal or RCIs or any other Public Administrative law domain, could ask for judicial review, the findings or decisions of such tribunals must contain element of ” finality ” in such findings.
In this particular RCI matter, it was merely a ” finding”, and it was just that. If there had been any award of damages for injury as in civil matters, or, if it had entailed in some kind of punitive consequence of fines or imprisonment as in criminal matters, that would constitute ” finality ” – which the Highest Court canthen take cognisance of for judicial Review after all necessary Apeal process have been first exhausted.
This RCI in the VK Linggam video investigations, merely made a finding that there were corrupt elements, and went no further. It was up to the authorities to invoke all necessary powers whether Police or MCC to ” gather ” necessary evidence to satisfy the criminal standard required against the six VIPs mentioned – so its up to the relevant authorities. Much as the RCI made aspertions or possible implications of criminality against them, there has been NO ” finality ” : all that necessary process must first be exhausted.
It was premature for Linggam to short circuit the process and go up straight via judicial review, hoping that the highest Court would ” clear their names” bymere declaration.
No finality yet, so its inchoate ( or ” half baked ” in ordinary parlence )
Even if the Federal Court mentioned about being contrary to ” public policy ” its mere obiter ( and not the ratio ) – the real legal ratio was that there has not been ” finality ” in the RCI’s findings.
Anyway, i would be glad to stand corrected in my views….
A kumbaya moment with VK Lingam? I bet you many are already doing that in private if they can get to him. His phone has gone off the hook and he is enjoying spring weather, out in the balcony of his Knightsbridge apartment. If I see him I promise to drag him to the nearest Red Lion and ask him how he pulled it off.
Gobala,
What I have been reading is not the written judgment of Malaysia’s highest court but the minds of the federal justices sitting on its bench.
Well, Mongkut Bean, bro VK Lingam pulled it off by association with the all and mighty in Malaysia.–Vincent Tan (the financier of UMNO), Mahathir (the Godfather of UMNO-Perkasa politics), Tun Ahmad Fairuz (Lord President), Eusoff Chin and Tunku Adnan. In Malaysia, it is you know who, not know how that matters. I am curious to find out if the Disciplinary Committee of the Malaysian Bar Council will move to have him barred from legal practice.–Din Merican
The end is near very near!
I am curious to find out if the Disciplinary Committee of the Malaysian Bar Council will move to have him barred from legal practice.–Din Merican
Curious? Why not? Curiousity kills the cat which is said to have nine lives. But I wouldn’t hold my breath. What are the private thoughs on the issue of your friend Ambiga on the matter? Since they are private I don’t suppose you can publish here. Stupid of me to ask.
But an attorney doesn’t have to commit anything that rises to the standard of a criminal act before he or she could be disciplined or suspended. Over here when you go to the court office anywhere there is this long list displayed of attorneys suspended for varying periods of between 3 to 6 months or longer. But then over here before you are admitted to the Bar, you would have to voluntarily disclose even the number of parking tickets you have been served with and outstanding. A simple check with the DMV the agency that issues your driving licence can easily disclose if you are lying. In Malaysia you would have to be guilty of murder before you could be considered unsuitable for admission to the Bar. Assuming they would have to declare anything at all.
Over here there are two issues to consider: 1) Unfitness of character 2) Good moral character. Both are high hurdles to overcome.
Bankruptcy is not an absolute bar. But then over here you have a right to petition for your own bankcruptcy to save youself from losing everything you got and stop your creditors. It is both a shield and a sword. Dishonesty (at work in any profession) is a more difficult hurdle to overcome and the judge hearing your petition if you have been convicted of dishonesty ten years earlier has no discretion whether to consider the issue (of dishonesty). He must consider and make his ruling. Those are of course only pre-admission (to the Bar) issues.
Somebody like VK Lingam would have been disciplined many times for transgressions both minor and serious (and there must be many that we do not know) and disbarred.
“Newly-appointed Court of Appeal president Md Raus Sharif who read the judgment also said that Lingam and two former chief justices, Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim, were not adversely affected over the RCI’s findings”
Contempt issues to deal with if Bar Council were to proceed?
Or just clues for the Bar Council to take the lead from?
That’s a crap ! There is a Malay saying :
Jika saekor kerbau terpalit dengan tahi, kesemua dalam kumpulan kerbau terpalit juga….”
Now i know where this ” kerbau ” thing came from oft repeated innuendos in this blog….thanx for enlightening it in relation to Linggam video scandal.