KUALA LUMPUR, 4 Sept 2008: The findings of the Royal Commission of Inquiry on the VK Lingam video clip adversely affected Umno secretary-general Datuk Seri Tengku Adnan Tengku Mansor and damaged his reputation, the High Court here was told today.
Tengku Adnan’s counsel Datuk Bastian Pius Vendargon said due to the commission’s findings, Tengku Adnan was also exposed to the possibility of criminal proceedings.
Vendargon submitted that under the circumstances, Tengku Adnan had a right to apply for leave for a judicial review against the commission’s findings as Order 53 Rule 2(4) of the High Court Rules 1980 stated that applicants must show they had been adversely affected by the decision of any public authority to have a review of the decision heard.
"In this case, the finding of the report damaged the applicant’s reputation (Tengku Adnan). Hence, he shall be entitled to make the application (seeking leave for judicial review)," Vendargon said.
Vendargon said since Tengku Adnan had no right to appeal against the commission’s findings, the right alternative for Tengku Adnan was to apply for a judicial review.
Vendargon was replying to preliminary objections raised by senior federal counsel Azizah Nawawi on 16 July to strike out the application by five individuals for leave to seek judicial review of the inquiry findings.
The applicants are lawyer Datuk VK Lingam, tycoon Tan Sri Vincent Tan, Tengku Adnan and two former chief justices, Tun Ahmad Fairuz Sheikh Abdul Halim and Tun Mohd Eusoff Chin.
They want certain parts of the commission’s report which implicated them deleted.
The commissioners in the inquiry were Tan Sri Haidar Mohd Noor (chairperson), former chief judge of Sabah and Sarawak Tan Sri Amar Steve Shim Lip Kiong, retired court of appeal judge Datuk Mahadev Shankar, former solicitor-general Puan Sri Zaitun Zawiyah Puteh and Professor Emeritus Tan Sri Dr Khoo Kay Kim.
The panel sat for 17 days to inquire into a 14-minute video clip, which was released to the public by Parti Keadilan Rakyat (PKR) adviser Datuk Seri Anwar Ibrahim.
It purportedly shows Lingam brokering appointments of judges on the telephone with former chief justice Ahmad Fairuz.
The commissioners, in their report which was also released to the public, found the video clip to be authentic and recommended that the appropriate course of action be taken against Lingam, Vincent, Tengku Adnan, former prime minister Tun Dr Mahathir Mohamad, Ahmad Fairuz and Mohd Eusoff for misconduct.
The commission found that there was sufficient evidence to investigate the six men for offences under the Sedition Act, the Official Secrets Act, the Penal Code, and the Legal Profession Act 1976.
Only Dr Mahathir is not seeking leave for a judicial review of the inquiry findings.
At today’s proceeding, Vendargon also submitted an examination of case law which made clear that applying modern authority, the commission’s report was clearly subject to judicial review.
"In conclusion, there is no authority that requires this claim to be struck out and the court should proceed to the threshold test for granting leave for judicial review," he said.
Vendargon added that the applicant in the judicial review application did not seek any damages or order from the court but was only seeking a declaration against the commission’s finding.
Earlier, Justice Datuk Abdul Kadir Musa allowed Vendargon’s application to delete the names of the five commissioners as stated in the judicial review application and substituted it with the same application by Lingam and Tan.
In the application, Lingam and Tan had stated the names of the respondents as "Members of the Commission of Inquiry on the VK Lingam video clip".
Justice Abdul Kadir ordered the decision also applied to Ahmad Fairuz’s and Mohd Eusoff’s applications.
Vendargon will continue his submission on 9 Sept. – Bernama