The court ruled that under Section 18 of the Commissions of Enquiry Act 1950, the applicant was not entitled to representation throughout the enquiry as his conduct was not the subject of the enquiry.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] On 5 June 2024, the applicant, Tun Dr Mahathir bin Mohamad sought leave of this court to commence judicial review proceedings for the following orders:

(a) a declaration that the applicant is a person whose conduct is subject of enquiry, or who is implicated or concerned in the matter under enquiry of the Royal Commission of Enquiry to Review the Handling of Matters Related to the Sovereignty Case of Batu Puteh, Middle Rocks and South Ledge under s 18 of the Commission of Enquiry Act 1950);

(b) an order of mandamus to compel the 1st to 7th respondents and any other member of the said Royal Commission of Enquiry to:

(i) allow the applicant and his lawyers to be present during the whole of the enquiry of the said Royal Commission of Enquiry;

(ii) serve the applicant and his lawyers with all documents, list of witnesses and/or other documentary evidence to be presented at the enquiry of the said Royal Commission of Enquiry; and

(iii) conduct the enquiry of the said Royal Commission of Enquiry in public.

(c) an order of prohibition prohibiting:

(i) the 1st respondent from acting as chairman of the said Royal Commission of Enquiry; and

(ii) the 3rd and 6th respondents from being members of the said Royal Commission of Enquiry.

(d) an order that all proceedings of the said Royal Commission of Enquiry be stayed pending the final disposal of this application, pursuant to O 53 r 3(8) of the Rules of 2012.

[2] Leave was only granted for to commence judicial review proceedings for an order of mandamus to compel the members of the said Royal Commission of Enquiry ("the Commissioners") to allow the applicant and his advocate to be present during the whole of the enquiry. There was an appeal against the refusal to grant the remaining prayers but that appeal has since been withdrawn.

[3] On 13 January 2025, I dismissed the substantive application for the order of mandamus. These are the reasons for my decision.

Background Facts

[4] The salient facts. Malaysia and Singapore were in a territorial dispute over the sovereignty of Pedra Branca otherwise known as Pulau Batu Puteh. The dispute was brought to the International court of Justice which on 23 May 2008 handed down a judgment stating that Pulau Batu Puteh belongs to the Republic of Singapore.

[5] In response to the judgment, Malaysia filed two applications: one for revision and the other for an interpretation of the judgment ("the review applications"). The review applications were subsequently withdrawn by Malaysia which effectively ended the dispute over Pulau Batu Puteh. The facts show that the review applications were withdrawn during the tenure of the applicant as Prime Minister of Malaysia. On 9 October 2021, after the applicant had left office and during the tenure of Dato' Sri Ismail Sabri as Prime Minister ("Ismail Sabri"), it was announced that the cabinet had resolved to set up a Special Task Force ("STF") to investigate the withdrawal of the review applications.

[6] Thereafter, on 14 February 2024, during the tenure of the present Prime Minister, Datuk Seri Anwar Ibrahim, a Commission of Enquiry ("the Commission") was set up by His Majesty, the Yang di-Pertuan Agong ("YDPA") pursuant to the Commissions of Enquiry Act 1950 relating to not only Pulau Batu Puteh but also Batuan Tengah and Tubir Selatan. The enquiry by the Commissioners commenced on 21 May 2024 and the applicant was identified as one of the witnesses. On 20 May 2024, the conducting officers reached out t