Photo by Shahrin Yahya/The Edge

KUALA LUMPUR (Sept 4): Tun Dr Mahathir Mohamad is not the subject matter of the Royal Commission of Inquiry (RCI) on Pulau Batu Puteh, the court heard on Wednesday.

Senior Federal Counsel Shamsul Bolhassan said that the RCI's terms of reference did not mention the two-time prime minister as the subject matter of the investigation.

"The terms were just to investigate, not to [point a finger at] Mahathir," he said.

Shamsul was arguing against Mahathir's legal action on having legal representation present at the commission's proceedings. It was reported that the RCI was established to seek resolution and improve issues related to national sovereignty.

The issue stretches back to May 23, 2008, when the International Court of Justice (ICJ) ruled that Singapore holds sovereignty over Batu Puteh, while Middle Rocks, situated less than 1km away, belongs to Malaysia.

The ICJ ruled that the ownership of South Ledge, located approximately 4km from Batu Puteh, would be determined based on the delimitation of territorial waters.

On Feb 2, 2017, Malaysia filed an application to review the ICJ's ruling. However, in May 2018, the Pakatan Harapan government led by Mahathir withdrew the application two weeks before it was scheduled to be heard on June 11, 2018.

Report sent to King

During Wednesday's hearing in the High Court here, Shamsul also contended that the matter is now academic as the inquiry had been completed, and the report was handed to the Yang di-Pertuan Agong last month. The findings are slated to be tabled and debated in Parliament come October.

Zainur Zakaria, a lawyer who appeared for Mahathir, argued that the matter is not academic just yet, as Section 18 is a statutory requirement, and non-compliance could nullify the proceedings. Mahathir was not allowed to have legal representation at the closed-door RCI proceedings.

Judge Datuk Amarjeet Singh Serjit Singh said that he needs some time to decide on the matter, and set Oct 28 to deliver his decision.

The hearing on Wednesday was specifically on Section 18 of the Commission of Enquiry Act 1950, whereby the person whose conduct is subject of an enquiry is entitled to be represented by a lawyer throughout the entirety of the proceedings.

Mahathir says RCI findings prejudicial to him

In his legal action, Mahathir contended that he had reasonable ground to believe that the findings and conclusions of the RCI would be prejudicial to him, based on the RCI's terms of reference and public statements made singling him out over the Batu Puteh issue.

He said that the RCI's terms of reference, which stated among others that the purpose and objective of the RCI were to "examine, review and provide opinions if any related parties have violated any laws, work norms or administrative circular in the performance of duties", referred to him.

This, he claimed, is underscored by statements made by Minister in the Prime Minister's Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said and former prime minister Datuk Seri Ismail Sabri Yaakob alluding to him as the person responsible for the issue.

Earlier in June, Amarjeet dismissed the former prime minister's judicial review application to make the RCI proceedings public, and to remove RCI chairman Tun Md Raus Sharif and two other panel members — lawyer Datuk Dr Baljit Singh Sidhu and Johor financial officer Datuk Muhammed Ridha Abd Karim — from the commission.

Baljit and Muhammed Ridha were members of the special task force 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 ICJ’s decision on Batu Puteh.

The RCI, led by Md Raus, was tasked with looking at the findings of the special task force.

The court also did not allow a stay of the RCI proceedings, resulting in Mahathir testifying before the commission on the very same day (June 12).

At a press conference later that day, the veteran politician said he did not make the decision in 2018 to withdraw the application to review the ICJ's granting of Batu Puteh's sovereignty to Singapore.

He said the decision was made by the Cabinet, after he "expressed his opinion" on the matter to them.