KUALA LUMPUR (June 10): A lawyer representing former prime minister Tun Dr Mahathir Mohamad said his client’s right to natural justice and procedural fairness was being violated in the ongoing Pulau Batu Puteh Royal Commission of Inquiry (RCI), when he was denied legal representation during proceedings.
Furthermore, senior lawyer Zainur Zakaria said it was also wrong for RCI chairman Tun Md Raus Sharif and fellow commissioners in lawyer Datuk Dr Baljit Singh Sidhu and Johor state financial officer Datuk Muhammed Ridha Abd Karim to continue to sit on the RCI following a “real danger of bias” against the former prime minister.
Zainur, who appeared with Muhammad Rafique Rashid Ali and Nizam Bashir, cited Section 18 of the Commissions of Enquiry Act 1950 on Mahathir’s right to legal representation in a bid to not only disqualify the trio, but also allow the former PM or his legal representatives to be present during proceedings.
The bench, led by Md Raus, had on May 21 dismissed all of Mahathir’s applications, while disallowing open proceedings.
Section 18 regarding the right to representation under the Act stipulates:
Any person whose conduct is the subject of enquiry under this Act, or who is in any way implicated or concerned in the matter under enquiry, shall be entitled to be represented by an advocate at the whole of the enquiry; and any other person who may consider it desirable that he should be so represented may, by leave of the Commissioner be represented in the manner aforesaid.
Mahathir is subject matter, so legal representation should be granted
Zainur pointed out that Mahathir is the subject matter of the RCI and therefore should be allowed legal representation during proceedings.
He said this especially after the then prime minister Datuk Seri Ismail Sabri Yaakob and minister in the Prime Minister’s Department (Law) Datuk Seri Azalina Othman Said had painted a picture that Mahathir was responsible for the loss in the Pulau Batu Puteh case.
The lawyer highlighted Ismail Sabri’s statement in October 2022, where he revealed there was possible negligence by Mahathir’s Cabinet in 2018 in its decision to withdraw a review of the Pulau Batu Puteh decision made by the International Court of Justice in 2008.
Furthermore, Zainur said Azalina also made a statement earlier this year, saying that the prime minister who made the decision “in secret” was responsible for Malaysia's loss in the Pulau Batu Puteh case.
“We contend that the applicant (Mahathir) is the person who is the subject of the enquiry (RCI) as defined under Section 18 of the Act and is therefore entitled to all the rights and protection accorded by the law.
“Thus, to say that the RCI is merely a fact-finding enquiry, and that the RCI will not be making any decision or finding of guilt or wrongdoing against anyone and therefore is not subject to the rules of natural justice or procedural fairness, is an anomaly with regards to our client,” he said.
The statements issued by Ismail Sabri and Azalina clearly refer to Mahathir, added Zainur.
Two STF members also RCI commissioners
Zainur further said Baljit and Muhammed Ridha were members of the STF, which submitted a report to Ismail Sabri, with the duo also commissioners in this RCI.
“Hence, there is a real danger of bias that the duo, who had purportedly made findings against our client, would make similar findings in this RCI if our client is denied legal representation,” he added.
He said it is for this reason that lawyers for Mahathir had rushed to the RCI to seek legal representation for the former PM throughout the proceedings on May 21.
Section 18 of the Act, Zainur said, stipulated a person who is implicated or concerned in the matter under enquiry shall be entitled to be represented by a lawyer at the whole of the enquiry.
Following this, the commission's decision on May 21, in denying Mahathir to be represented in the RCI amounts to a breach of his right to natural justice and fair procedure, where the outcome may affect him.
In addition, Zainur said Md Raus being chairman of the RCI also poses a real danger of bias against Mahathir. This, he added, is due to an earlier conflict over Mahathir’s challenge against Md Raus as an additional judge.
“We say the decision by the RCI to dismiss Mahathir’s application to recuse the trio and deny him legal representation amount to a breach of natural justice and procedural fairness,” he added.
Zainur also cited a case in New Zealand where the court could intervene in the decision of an RCI in a judicial review, if there was a breach of one’s right to natural justice and procedural fairness.
He added that although Mahathir’s name was not mentioned in the terms of reference for the RCI, the proceedings and past statements by Ismail Sabri and Azalina showed they are referring to him (Mahathir).
AGC says RCI decision non-justiciable
Senior federal counsel (SFC) Shamsul Bolhassan, appearing for the commissioners who were named as respondents, said any decision on the RCI is non-justiciable and not amenable to judicial review.
Shamsul, who appeared with SFC Ahmad Hanir Hambaly @ Arwi, cited the Datuk VK Lingam’s RCI case where the Federal Court ruled that the decision of the RCI cannot be challenged.
“The RCI is not a decision-making body and it did not make a legal decision. The finding of the commission has an investigative function and makes recommendations. It does not go beyond that,” he said, adding the decision made in the course of the RCI is non-justiciable.
Furthermore, Shamsul said the challenge brought by Mahathir cannot be made by piece-meal or dissection on the basis that he is not allowed to be represented.
“The decision made is non-justiciable,” he said.
When the presiding judge, Datuk Amarjeet Singh Serjit Singh, asked if Mahathir's argument was that his right to natural justice and procedural fairness had been violated, as indicated by Section 18 of the Act, Shamsul suggested that the Federal Court's decision in the Lingam case be used as a guiding precedent.
“We should not use the New Zealand case when the matter had already been decided by the Federal Court,” he said, adding that if Mahathir’s application was allowed — Mahathir also seeks a stay of RCI proceedings — a lot of time and money would be wasted.
Shamsul also said the RCI is not conducting a fresh inquiry on the Pulau Batu Puteh issue, and whatever the minister had said has no bearing on the current RCI proceedings.
As Amarjeet said he needed time to make a decision, he was pointed to the fact that Mahathir was scheduled to testify in the RCI on Wednesday morning.
The judge tried to impress upon deputy public prosecutor Datuk Yusaini Amer Abdul Karim — the conducting officer of the RCI who was also present at Monday’s proceedings — to possibly delay Mahathir’s scheduled appearance, but Yusaini said he cannot do that, as a decision would have to be made by the commissioners.
Following that, Amarjeet said he would deliver his decision at 8:30am Wednesday, an hour before Mahathir’s scheduled testimony.