Lingam, Former CJs Should Be Allowed To Challenge RCI Findings
(Bernama) – PUTRAJAYA — Lawyer V.K. Lingam and former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim who were implicated in the controversial Lingam tape affair, should be allowed to challenge the Royal Commission of Inquiry’s (RCI) findings of their misbehaviour in a judicial review proceeding, according to Court of Appeal judge Zaharah Ibrahim.
In her 12-page written judgment which was made available to the media on Tuesday, she said the three should be permitted to argue on the issue of whether their rights to liberty as enshrined under Article 5 of the Federal Constitution had been adversely affected by the RCI’s findings.
On Aug 24 last year, a three-man panel of the Court of Appeal, in a majority decision, allowed their (Lingam, Eusoff and Ahmad Fairuz’s) appeals to set aside a High Court’s refusal to grant them leave to initiate a judicial review proceeding to challenge the RCI’s findings.
Justices Zaharah and Tengku Datuk Baharudin Shah Tengku Mahmud ruled in favour of them while Justice Mohd Hishamudin Mohd Yunus dissented. They did not give their written grounds then.
Justice Zaharah said the High Court erred because it had placed a higher threshold on the three than they were required to cross, in showing to the court that their application for leave for a judicial review, was not vexatious and that they had an arguable case.
She also said whether or not the determinations made by the RCI constituted “decisions”, thet were certainly arguable and that Lingam, Eusoff and Ahmad Fairuz should be permitted to take up the issue.
Zaharah said the appellants had claimed that as a result of the RCI findings, they would be exposed to criminal prosecution and that even if no criminal proceedings were brought against them, the findings had caused a permanent stain and stigma on their character.
A five-man panel of the RCI was set up in 2008 to look into the authenticity of a video clip allegedly showing Lingam in a telephone conversation with Ahmad Fairuz over the appointment of judges.
The RCI report made available to the public on May 20 2008, recommended that appropriate action be taken against six individuals namely Lingam, Eusoff, Fairuz, tycoon Vincent Tan, former prime minister Dr Mahathir Mohamad, businessman and former minister in the prime minister’s department Tengku Adnan Tengku Mansor for misconduct.
It also found that there was prima facie evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act.
The RCI also concluded that the video clip was authentic, and that Lingam was the person in conversation with Ahmad Fairuz over the appointment of judges.
The matter is currently awaiting hearing of the RCI’s appeal at the Federal Court which was expected to decide on a novel legal question on whether the findings of the RCI was reviewable.
Except for Dr Mahathir, the other five had filed for leave for a judicial review in an attempt to quash the inquiry’s findings. However, Tan and Tengku Adnan withdrew their appeal at the court of appeal stage early last year.
In his written judgment dated May 4 this year, Justice Hishamudin held that the High Court was correct to rule that RCI’s findings were not amenable to judicial review as its findings did not fall within the realm of the meaning of “decisions”.
(Bernama)
