KUALA LUMPUR (June 12) : The High Court (Appellate and Special division) has dismissed Tun Dr Mahathir Mohamad’s application to have the Pulau Batu Puteh Royal Commission of Inquiry (RCI) be held in the open and remove three members of the commission, including chairman Tun Md Raus Sharif.

Judge Datuk Amarjeet Singh Serjit Singh also did not allow a stay of the RCI proceedings, which is currently ongoing.

However, the judge allowed Mahathir’s application for leave (permission) to challenge the RCI's decision to disallow him or his lawyers from being present throughout the proceedings.

Mahathir was scheduled to testify at the RCI in Putrajaya at 11am Wednesday, as his lawyers consider whether to appeal Amarjeet's decision.

Amarjeet in his broad grounds said the High Court is bound by the Federal Court's decision in Datuk VK Lingam's video tape case, and the subject matter is not amenable to judicial review.

“Following this, the court has decided to dismiss all the reliefs (sought in the application) including the stay of the RCI, except one. The application is not amenable for judicial review and this court is not bound to follow the decision made in the New Zealand case (cited by Mahathir’s lawyers).

“If the RCI is allowed to be challenged or its conclusion (findings) questioned, the purpose of holding the RCI would come to naught and would be a waste of public funds. This RCI is important and of public interest to determine the loss of land (Pulau Batu Puteh).

“For this purpose, eminent persons are appointed as commissioners in the RCI,” Amarjeet said in his grounds.

The judge however, granted Mahathir permission to challenge the panel’s decision on May 21 in disallowing him or his legal representative to be present during RCI proceedings.

As a result of this, Amarjeet fixed June 26 as case management on the merits of that particular matter.

Mahathir was represented by senior lawyer Zainur Zakaria, Muhammad Rafique Rashid Ali, and Nizam Bashir, while Senior Federal Counsels Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi represented the government.

Court clarifies it is only bound to grant leave

On Mahathir’s challenge of the RCI panel’s decision barring his or his lawyers' presence at proceedings, the judge indicated that he would decide on the merits of the application directly.

The judge said he was bound by a court decision on allowing leave (permission) first and would hear the merits of the application later.

Besides Md Raus, Mahathir is seeking to have lawyer Datuk Baljit Singh Sidhu, and Johor financial officer Datuk Muhammed Ridha Abd Karim removed from the RCI.

Baljit and Muhammed Ridha were members of the special task force (STF) headed by former attorney general Tan Sri Mohamed Apandi Ali which looked into the Cabinet’s decision in 2018 to withdraw a review of the International Court of Justice's (ICJ) decision on Pulau Batu Puteh.

The RCI, led by Md Raus, has been tasked with looking at the findings of the STF and making recommendations.

Mahathir’s grouse with Md Raus is due to an earlier conflict over Mahathir’s challenge against Md Raus as an additional judge.

The elder statesman filed the judicial review application earlier this month following the panel’s refusal to let him or his lawyers be present during RCI proceedings on May 21.

This came after politicians such as former prime minister Datuk Ismail Sabri Yaakob and present Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said seemed to pin the blame on Mahathir for withdrawing a review of the Pulau Batu Puteh decision.

Mahathir had contended that the Cabinet's decision in 2018 was a collective one made by the then Pakatan Harapan government and that decision was made on the recommendation of a panel of experts including foreigners appointed by Apandi, which had tabled their findings before the Cabinet.

He contended that the RCI was on a fact-finding mission, and the outcome might be to his detriment following comments made by the politicians against him.

Mahathir also alleged that by not being allowed to attend the RCI proceedings, as well as have legal representation, his right to natural justice and procedural fairness were being violated under Section 18 of the Commissions of Enquiry Act.

Section 18 stipulates that: Any person whose conduct is the subject of enquiry under this Act, or who is in any way implicated or concerned in the matter under enquiry, shall be entitled to be represented by an advocate at the whole of the enquiry; and any other person who may consider it desirable that he should be so represented may, by leave of the Commissioner be represented in the manner aforesaid.