Hands Off The Royal Comission

Wai Loon examines the Federal Court's decision in Royal Commission of Enquiry v Tun Dato' Seri Ahmad Fairuz

FACTS OF THE CASE

The decision of the Federal Court in Members of the Royal Commission of Enquiry v Tun Dato' Seri Ahmad Fairuz bin Dato' Sheikh Abdul Halim [2011] 6 MLJ 490 concerns a person’s right to challenge in a court of law the findings made by a Commission of Enquiry that was set up to investigate, determine and make recommendations in relation to certain matters that arose from a video clip that contained controversial material connected with the Malaysian judiciary ("Video Clip").

The Video Clip contained images of a man engaged in a telephone conversation relating to the appointment of judges. The Video Clip went viral after it first surfaced on the internet on 19 September 2007, and led to furious debates that questioned the independence of the Malaysian judiciary.

The Government of Malaysia (“Government”) took immediate steps to set up an independent panel to investigate into the authenticity of the Video Clip. On the recommendation of the panel, the Government requested His Majesty the Yang di-Pertuan Agong to establish a Commission of Enquiry.

On 12 December 2007, a Commission of Enquiry ("Commission") was set up pursuant to section 2 of the Commissions of Enquiry Act, 1950 ("Act"). The terms of reference to the Commission included the following:

  • to enquire into the authenticity of the Video Clip;

  • to identify the person speaking on the telephone, the person he was speaking to as well as those mentioned in the telephone conversation;

  • to enquire into the truth or otherwise of the content of the telephone conversation in the Video Clip;

  • to determine whether any misbehaviour had been committed by the persons identified or mentioned in the Video Clip; and

  • to recommend appropriate action, if any, to be taken against the persons identified or mentioned in the Video Clip.

After a month long hearing, the Commission completed and submitted its report to the Yang di-Pertuan Agong ("Report") containing the findings and recommendations, inter alia, as follows:

  • The Video Clip was authentic;

  • Certain individuals depicted or mentioned in the Video Clip were identified and named in the Report;

  • The content of the conversation in the Video Clip was true in substance and in material particulars;

  • There was sufficient evidence of misbehaviour on the part of certain individuals mentioned or identified in the Video Clip; and

  • There was sufficient cause to invoke various laws, such as the Penal Code and the Legal Profession Act, 1976, against certain individuals mentioned in the Video Clip.

Having made such findings, the Commission recorded that it was up to Attorney General of Malaysia ("AG") and the Bar Council Malaysia to take appropriate actions against the individuals implicated in the Report. The Report was transmitted to the Government who made the Report available to the public.

On or about 22 October 2009, it was reported in the media that the AG decided that no further action needed to be taken arising from the findings made in the Report.


 

THE APPLICATIONS BY THE RESPONDENTS

After the release of the Report to the public, three individuals who were implicated in the Report ("respondents") filed separate applications for leave for an order of certiorari to quash the findings of the Commission pursuant to Order 53 ("O. 53") of the Rules of the High Court, 1980 (“RHC”).

In support of their applications, the respondents alleged that the findings of the Commission were tainted due to bias and prejudice and were contrary to the principle of law.

The respondents also contended that paragraph 1 of the Schedule to the Courts of Judicature Act, 1964 ("CJA") gave the court wide powers to issue an order of certiorari and that O. 53 r. 2(4) ("O. 53 r. 2(4)") of the RHC which limits such right to a 'decision' of a public authority was ultra vires.

The AG objected to the applications by the respondents and argued that the findings of the Commission were not 'decisions' within the ambit of O. 53 r. 2(4). The AG also contended that the respondents could not be construed as persons 'adversely affected' by the Commission's findings.


DECISIONS OF THE HIGH COURT AND THE COURT OF APPEAL

The High Court upheld the objections by the AG and dismissed the respondents' applications.

The respondents appealed. The Court of Appeal, by a majority decision of 2 - 1, allowed the respondents' appeals.

The AG obtained leave to appeal to the Federal Court.


THE DECISION OF THE FEDERAL COURT

The sole question cited for determination by the Federal Court was whether the findings of the Commission are reviewable under O. 53 of the RHC.

As a starting principle the Federal Court stated that O. 53 permits a person who is adversely affected by the decision of a public authority to make an application for a judicial review of that decision. The person must however obtain leave before his substantive motion can be heard.

The Federal Court answered the question cited to it in the negative on 2 grounds. Firstly, the findings of the Commission were not ‘decisions’ within the ambit of O. 53 r. 2(4) RHC, and the respondents could not be construed as persons “adversely affected” by the findings of the Commission, and hence, O.53 RHC did not apply in such a situation. Secondly, it would be against public policy to allow the findings of the Commission to be challenged in the courts.

Do findings of the Commission come within the ambit of O. 53 RHC?

According to Raus FCJ, it is trite law that the purpose of an order for certiorari is to quash the legal effect of a decision. His Lordship adopted the principles laid down in Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935 where the House of Lords held that for a decision to be susceptible to the court's reviewing powers, there must first be a decision by a decision maker or a refusal by him to make a decision, and that decision must affect the aggrieved party by either altering his rights or obligations or depriving him of the benefits which he has been permitted to enjoy.

The Federal Court held that although the Commission was a public authority, it was not a decision making body. According to Raus FCJ, a closer look at the Report revealed that the Commission did not make legal decisions. The Report consisted of findings and recommendations of the Commission on the terms of reference entrusted upon them. Being mere findings and recommendations it did not bind the respondents, not even the Government.

The learned Federal Court Judge acknowledged that, notwithstanding that the Commission had made strong findings that there was sufficient cause to invoke various laws against certain individuals mentioned in the Video Clip, including the respondents, such findings remained mere findings. The Court concluded that such findings were not reviewable as the respondents' legal rights were not directly affected by the findings nor had they been deprived of any benefit which they had been permitted to enjoy.

Accordingly, the Court agreed with the minority decision of the Court of Appeal and held that the findings and recommendations of the Commission did not come within the ambit of O. 53 of the RHC.

The Federal Court also agreed with the minority decision of the Court of Appeal that there was no inconsistency between O. 53 r. 2(4) and paragraph 1 of the Schedule to the CJA. According to His Lordship, the word 'decision' in O. 53 r. 2(4) did not run foul of paragraph 1 of the Schedule to the CJA and was not ultra vires.

Public interest

The Federal Court was of the view that was a strong policy consideration against allowing the findings of the Commission to be challenged in the courts. If such proceedings were allowed to be challenged either at the onset or during its continuance by prohibition or at its conclusion, by certiorari, its purpose would come to naught and make the setting up of a Commission a meaningless exercise and a waste of public funds.

Hence, the Federal Court concluded that it would be against public policy to subject the findings and recommendations of the Commission to judicial review. In coming to this conclusion, the Federal Court declined to follow the position taken by the New Zealand Court of Appeal in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No.2) [1981] 1 NZLR 618, which held that the findings of a Royal Commission were amenable to judicial review. According to the apex court, this policy consideration was the more important reason for its decision.

There was also a related, but non-legal, reason for the decision in this case. At the heart of the inquiry into the Video Clip was the image and independence of the Malaysian judiciary. It was because of this that the Commission was set up to investigate and make recommendations for the betterment of the judiciary. The Federal Court opined that therefore, it would not make any sense if the findings of the Commission were now allowed to be reviewed by those courts.


SIGNIFICANCE OF THE DECISION

This decision of the Federal Court has put to rest any confusion caused by the different opinions of the majority decision and the dissenting judgment of the Court of Appeal.

This decision of the apex court of Malaysia is significant as it makes it unmistakably clear that findings and recommendations of Commissions of Enquiry set up under the Act are not amenable to judicial review.



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