KUALA LUMPUR, Aug 17 — The High Court here today dismissed Tun Dr Mahathir Mohamad’s bid to remove two people from sitting on the Royal Commission of Inquiry (RCI) examining a financial scandal from his administration.
Lawyer Mohamed Haniff Khatri Abdulla said his client, Dr Mahathir's application for leave for judicial review was dismissed without costs.
“In relation to the application to quash the RCI's decision not to remove two of its members, the judge was of the opinion that the RCI panel has no powers to remove or not to remove (members); so there's no valid decision that has to be quashed because they have no powers,” Haniff told reporters after the decision was delivered in chambers by Kuala Lumpur High Court judge Datin Azizah Nawawi.
He said the judge also said the High Court could not issue a mandamus order or court order to compel the Malaysian government or prime minister to act, as the prime minister is not considered a “public officer”.
Today's decision is just four days away from when the RCI panel is scheduled to conduct its first day of inquiry next Monday.
Mohamed Haniff said he will seek instructions from his client on whether to file for an appeal at the Court of Appeal.
Datuk Amarjeet Singh, who represented the federal government, said he previously raised an objection to Dr Mahathir’s lawsuit based on the arguments that the RCI panel had no powers to remove its members while the wrong parties were named as respondents.
In a nine-page written judgment by Azizah today, the High Court judge said the RCI panel was correct to refuse Dr Mahathir's application to disqualify two of its members.
The judge noted that the Commission of Enquiry Act's Sections 2 and 4 meant the power to appoint RCI members or to appoint new members to replace those who resign, die or wish to be discharged lies with the Yang di-Pertuan Agong.
“As such, the RCI has no jurisdiction or power on the appointment and/or removal of its members,” she said.
On Dr Mahathir's bid for a mandamus order, the judge said such a court order to compel an authority to perform a public duty can only be issued against a public officer, a corporation or a court subordinate to the High Court.
But a previous court decision ruled that both the Malaysian government and ministers were not public officers within the meaning of mandamus orders under Section 44 of the Specific Relief Act 1950, she said.
Azizah also said she was bound by the Federal Court's 2011 decision in former judge Tun Ahmad Fairuz Sheikh Abdul Halim's lawsuit against an RCI panel, noting that the apex court had cited public interest when dismissing leave to challenge the RCI's findings.
Last Wednesday, Dr Mahathir sued to stop the RCI panel’s chairman, Tan Sri Mohd Sidek Hassan, and fellow commissioner Tan Sri Saw Choo Boon from sitting on the panel probing a 23-year-old alleged financial scandal, citing the need to prevent prejudice and highlighting that they were previously on a special task force panel which recommended this RCI.
In his lawsuit, Dr Mahathir sought a court order to quash the RCI panel’s decision last Tuesday to not disqualify the duo, and another court order to compel the government to immediately advise the Yang Di-pertuan Agong to revoke or terminate royal consent for the duo’s appointment to the panel.
Dr Mahathir, now the chairman of Opposition pact Pakatan Harapan, also sought a court order to stop the commissioners from carrying out their roles or conducting the RCI proceedings until the end of the lawsuit.
Dr Mahathir was the prime minister during the 1990s when Bank Negara Malaysia (BNM) was alleged to have incurred billions of ringgit of foreign exchange (forex) losses, an issue that will be examined by this RCI panel in 10 scheduled days of hearings within these two months (August 21, 24, 29, 30 and September 6, 7, 18, 19, 20, 21.).
The RCI panel has to complete its inquiry based on five terms of reference within three months and plans to submit its report to the Yang di-Pertuan Agong by the scheduled date of October 13.
The seven respondents named in Dr Mahathir's lawsuit were Mohd Sidek, Saw, their three fellow commissioners Datuk Kamaludin Md Said, Datuk Seri Tajuddin Atan, Pushpanathan S.A Kanagarayar, the RCI secretary Datuk Yusof Ismail and the government of Malaysia.