The findings of a Commission of Inquiry are not reviewable under judicial review rules as they do not constitute binding decisions and do not adversely affect the legal rights of individuals involved.

Headnote:(A) Commission of Enquiry Act 1950 - Section 2 and 3 - Courts of Judicature Act 1964 - Section 96 - High Court Rules 1980 - Order 53 - Judicial Review - The majority decision of the Court of Appeal allowed respondents' appeal for leave to judicial review against findings of the Royal Commission, contending findings constituted 'decisions' under the High Court Rules. The court found that the Commission's findings were mere recommendations and did not constitute binding decisions, thus not reviewable; it emphasized the strong public policy against judicial review of Commission findings. (Paras 19-40)

(B) Judicial Review - Decision-Making Authority - The court highlighted that findings lack legal status to affect rights of individuals, asserting that a decision must alter rights or obligations, while determining findings of enquiry do not bind the respondents or the government. (Paras 21-29)

(C) Public Interest - The argument emphasized the potential disruption to the usefulness of Commissions if findings could be challenged in court, maintaining that the integrity of the judiciary should remain untainted by continued public debate following a factual investigation. (Paras 41-44)

Table of Content
1. introduction and context of appeals (Para 1 , 2 , 3 , 4)
2. contextual background of the commission and findings. (Para 5)
3. events leading to the commission's establishment (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13)
4. arguments presented by parties (Para 14 , 15)
5. implications of the commission's findings and judicial applications. (Para 16 , 17)
6. clarification of judicial review standards. (Para 20)
7. contention that findings are 'decisions' (Para 21 , 23 , 24 , 25)
8. arguments concerning the definition of 'decisions' in judicial review. (Para 22)
9. criteria for judicial review under o 53 (Para 26 , 27 , 28)
10. comparison with similar legal precedents on review. (Para 29 , 30 , 31)
11. judicial review of findings not admissible (Para 32 , 33 , 34 , 35 , 36 , 37)
12. public interest considerations regarding judicial review. (Para 38 , 39 , 41)
13. public interest considerations in judicial review (Para 40 , 42 , 43 , 44)
14. conclusions and rulings of the judgment (Para 45)

[1] There are three separate appeals before us filed by the Attorney General. The appeals were against the decisions of the Court of Appeal dated 28 August 2010. The Court of Appeal, which heard the three appeals together, had by a majority decision allowed the respondents' appeal against the decision of the High Court in refusing the respondents' application for leave for judicial review.

[2] At the High Court the respondents with two others had (by separate applications) sought for leave to apply for an order of certiorari to quash the relevant parts of the report of the Royal Commission of Enquiry ("the Commission") set up pursuant to s 2 of the Commission of Enquiry Act 1950 ("Act 119"). All the five applications were made under O 53 r 3 of the Rules of the High 1980 ("the RHC").

[3] On 7 February 2011, this Court pursuant to s 96 of the Courts of Judicature Act 1964 ("the CJA") granted the Attorney General's application for leave to appeal against the decision of the Court of Appeal on a single question, namely:

Whether the findings of the Commission of Enquiry pursuant to s 3 of the Commission of Enquiry Act 1950 is reviewable under O 53 Rules of the High 1980.

[4] We heard the three appeals together on 14 June 2011 and it was agreed by all parties that the decision in Appeal No: 01(i)-2-2011(W) will bind Appeal No: 01(i)-1-2011(W) and Appeal No: 01(i)-3-2011(W). The respondent in Appeal No: 01(i)-2-2011(W) is Dato' Kanalingam a/l Vellupillai, an advocate and solicitor and better known as Dato' VK Lingam. The respondent in Appeal No: 01(i)-1-2011(W) is Tun Dato' Seri Ahmad Fairuz bin Dato' Sheikh Abdul Halim, a former Chief Justice. The respondent in Appeal No: 01(i)-3-2011(W) is Tun Haji Mohd Eusoff bin Chin, also a former Chief Justice.

[5] For the purpose of arguments in these appeals, all the parties agreed that they would be referring to the appeal records of the respondent in Appeal No: 01(i)-2-2011(W).

Background Facts

[6] The relevant facts and events leading to these appeals are these. On 19 September 2007, a video clip recording containing a controversial material relating to the judiciary surfaced on the internet. It depicted images of a person engaged in a telephone conversation relating to the appointment of judges.

[7] The exposure was indeed explosive. The government on 25 September 2007, as an immediate response, set up an independent panel comprising three members, namely Tan Sri Dato' Seri Haidar bin Mohamed Noor, Dato' Mahadev Shankar and Tan Sri Dato' Lee Lam Thye, to investigate into the authenticity of the video clip recording. On 6 November 2007, the independent panel submitted its report to the government recommending that a Commission be set up.

[8] The government agreed with the recommendation and took steps to advice His Majesty the Yang di Pertuan Agong for the establishment of a Commission. On 17 November 2007, the government announced the setting up of the Commission.

[9] On 12 December 2007, pursuant to s 2 of Act

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2011 MarsdenLR 2164

FEDERAL COURT, PUTRAJAYAAHLI-AHLI SURUHANJAYA YANG MEMBENTUK SURUHANJAYA SIASATAN MENGENAI RAKAMAN KLIP VIDEO YANG MENGANDUN....[Civil Appeals No: 01(I)-1-2011(W), 01(I)-2-2011(W) & 01(I)-3-2011(W)]

The findings of a Commission of Inquiry are not reviewable under judicial review rules as they do not constitute binding decisions and do not adversely affect the legal rights of individuals involved.

Cases Referred (2)

FEDERAL COURT, PUTRAJAYA
AHLI-AHLI SURUHANJAYA YANG MEMBENTUK SURUHANJAYA SIASATAN MENGENAI RAKAMAN KLIP VIDEO YANG MENGANDUN....
[Civil Appeals No: 01(I)-1-2011(W), 01(I)-2-2011(W) & 01(I)-3-2011(W)]