Pulau Batu Puteh RCI remains closed door after court dismisses Dr Mahathir’s legal challenge
KUALA LUMPUR, June 12 — The ongoing Pulau Batu Puteh Royal Commission of Inquiry (RCI) will remain closed to the public after former prime minister Tun Dr Mahathir Mohamad failed in his legal bid at the High Court to have proceedings conducted in the open.
High Court Judge Datuk Amarjeet Singh Serjit Singh delivered the verdict ahead of Dr Mahathir’s scheduled appearance before the RCI panel for evidence giving at 11am today.
In his ruling, Amarjeet said he was bound by precedence as decided by the Federal Court in 2011 concerning a video clip of lawyer VK Lingam discussing the appointment of judges with a third party.
The judge added that the Federal Court previously held that RCIs merely makes a finding, gives its opinion and recommendations and does not bind anyone including the government thus it was not amenable to judicial review.
“The subject matter is not amenable to judicial review,” he said.
In the same hearing, Amarjeet also dismissed Dr Mahathir’s bid to recuse three members including the chairman of the panel and to have the ongoing proceedings suspended pending the disposal of his judicial review application.
If an RCI is allowed to be challenged at the outset, during its continuance or at its conclusion, its decision will come to nought.
“Public funds spent will go to waste,” Amarjeet said, adding that the subject matter on the loss of Malaysia's land is of public concern.
Nevertheless, Amarjeet granted leave for Dr Mahathir’s application to have his lawyers and himself to be present throughout the RCI proceeding.
But until the court order is granted, Dr Mahathir's lawyer would not be allowed to be present during the hearing unless the commission allows it.
The court fixed June 26 for case management.
Dr Mahathir was represented by lawyers Zainur Zakaria, Muhammad Rafique Rashid Ali and Nizam Bashir, while senior federal counsels Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi appeared for the Attorney General’s Chambers (AGC).
Outside the courtroom, Muhammad Rafique told reporters that he will take instructions from Dr Mahathir on whether to consider an appeal for today's ruling.
The judicial review application was filed by Dr Mahathir on June 5 with a certificate of urgency, following the RCI’s decision on May 21 that rejected his legal representation, and the refusal on the recusal of the RCI trio and to have proceedings held in the open.
In the current judicial review bid, Dr Mahathir named RCI chairman Tun Md Raus Sharif and his deputy Tan Sri Zainun Ali as the first and second respondents.
The third to eighth respondents are RCI members Datuk Baljit Singh Sidhu, Datuk Johan Shamsuddin Sabaruddin, Prof Datin Faridah Jalil, Datuk Mohammed Ridha Abd Kadir, Dickson Dollah and RCI Secretary Zamri Misman.
In the application, Dr Mahathir is also seeking a declaration that he is an individual involved in or related to the matter being investigated by the RCI under Section 18 of the Commissions of Inquiry Act 1950 (Act 119).
Dr Mahathir is seeking an order to have the proceedings of the RCI into the handling of issues related to the sovereignty of Batu Puteh, Middle Rocks and South Ledge conducted publicly.
He is also seeking an order to prohibit Md Raus from acting as the RCI chairman and to prevent Dr Baljit and Mohammed Ridha from being members of the RCI.
This follows Dr Mahathir’s argument of a real danger of bias with the three of them sitting on the RCI panel.
Dr Mahathir filed a judicial review in 2017 to challenge the legality of Raus remaining chief justice until 2020, after he was appointed as an additional judge of the Federal Court after reaching the retirement age set out in the Federal Constitution.
He said Baljit and Ridha would have predetermined the issues as they were also members of a special task force set up in 2021 to scrutinise and give recommendations regarding Batu Puteh, including a review of laws.
On February 14, it was reported that His Majesty Sultan Ibrahim, King of Malaysia had consented to the setting up of an RCI and the appointment of seven RCI members.
On May 23, 2008, the International Court of Justice (ICJ) ruled that Singapore had sovereignty over Batu Puteh while Malaysia had sovereignty over Middle Rocks.
In addition, the ICJ ruled that ownership of South Ledge, located about four kilometres from Batu Puteh, would be determined based on the maritime boundaries of the country that controls it.
The Malaysian government then filed an application to review the ICJ's 2008 decision.
The Pakatan Harapan government, then under Dr Mahathir, subsequently withdrew the application before it came up for hearing on June 11, 2018.
