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2025 MarsdenLR 5219
HIGH COURT MALAYA KUALA LUMPUR
TUN DR MAHATHIR MOHAMAD – Appellant
Versus
TUN MD RAUS SHARIF & ORS – Respondent
[Judicial Review No: WA-25-236-06-2024
The court affirmed that a person's right to legal representation at a commission of enquiry is not absolute if their conduct is not the subject of the enquiry, and mandamus is not available if there is no legal duty to compel compliance.
Headnote:(A) Commissions of Enquiry Act 1950 - Section 18 - Judicial review application - Applicant sought leave for mandamus to ensure his representation at Royal Commission of Enquiry regarding his conduct - Court granted leave for representation only during testimony but denied other prayers, including prohibiting certain respondents - Key issue was whether conduct was subject of enquiry - Court determined that applicant's legal rights were not directly affected, thus mandamus was not appropriate as there was no legal duty to allow continuous representation. (Paras 1, 11, 24)
Facts of the case:
The case revolves around a territorial dispute between Malaysia and Singapore regarding Batu Puteh, resulting in a Royal Commission of Enquiry. The applicant sought to attend the commission in full alongside his legal counsel, alleging his conduct was implicated in the process. The Commission's refusal led to the judicial review application. (Paras 4-7)
Findings of Court:
The Commission was not established to specific inquiries into the applicant's conduct; thus, the right to representation in the full enquiry was not established by law. Consequently, the request for mandamus was denied. (Paras 19-20, 22)
Issues: The main issue addressed was whether the applicant's conduct fell under the subject of enquiry and the entitlement to legal representation during the full duration of the enquiry. (Paras 10, 22)
Ratio Decidendi: The court concluded that the Commission's refusal to allow full representation did not violate the applicant's rights, as there was no legal imperative for such representation during the entire enquiry. The voluntary nature of the commission and subsequent reporting diminished the necessity for the requested order. (Paras 19-20, 24)
Result: Application for the order of mandamus is refused.
| Table of Content |
|---|
| 1. court's introduction and factual background of the case. (Para 1 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. final order of the court declining the application. (Para 3) |
| 3. court's analysis of the commission's terms of reference. (Para 10 , 19 , 20 , 21) |
| 4. applicant's arguments for legal representation. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 5. legal principles governing the remedy of mandamus. (Para 22 , 23 , 24) |
| 6. court's clarification on academic issues in mandamus applications. (Para 25 , 26 , 29 , 30) |
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 Commissions 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 court 2012.
[2] Leave was only granted 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 con
