Lingam - "correct..correct...correct": RCI has affected my reputation deeply, tells Federal Court

'Under the federal constitution, I am entitled to protect my reputation,' VK Lingam tells the Federal Court.
Senior lawyer VK Lingam who was implicated in the 'Lingam Tape' saga of 2008, has argued that his fundamental liberty is at stake with his reputation and law practice is on the line.

Lingam (right) was submitting at the Federal Court today in defence of the Court of Appeal decision to allow him and two others to challenge a royal commission of inquiry's recommendation that action be taken against them over the 'Lingam Tape' saga of 2008.

In addition to Lingam, the commission had recommended that legal steps be taken against former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim, former premier Dr Mahathir Mohamad, then-minister in the prime minister's department Tengku Adnan Tengku Mansor and tycoon Vincent Tan.

The commission, through its findings and recommendations “has affected my reputation deeply and under the federal constitution, I am entitled to protect my reputation," Lingam told the apex court's three-member panel today.

Lingam said there was no doubt that what the RCI found amounted to a decision and this had adversely affected his standing in society.

“There was a decision by the commission it is as simple as that in plain simple English, and if there is a decision I can apply for a judicial review as an aggrieved party,” he said.

He was submitting before a three member panel of the Federal Court which is hearing an appeal by the commission against the appellate court for allowing Lingam and former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim (left) to challenge the commission's findings.

The panel is led by Justice Zulkefli Ahmad Makinuddin, the other two judges being Md Raus Sharif and Abdull Hamid Embong.

Raus: You still could defend yourself

Justice Md Raus at one point interjected to ask Lingam how he would be affected when no action has been taken by the attorney-general on whether to charge him with any offence.

“You still have your right to defend yourself if you are charged, can't you? So you are not adversely affected,” Justice Md Raus said.

Lingam replied that he had to go through the pain and suffering of a criminal trial under the Penal Code, the Legal Profession Act or other Acts, of which it may not be necessary if leave (permission) was granted initially.

“This case could not be shut out (at the High Court) at the leave stage. All of us are entitled to have the merits of our case be heard as it is our fundamental right,” he submitted.

During submissions at the Court of Appeal, the senior lawyer had argued that he had the right to be heard as he had wanted to clear his name.

The Kuala Lumpur High Court had on Dec 12, 2008 denied leave to Lingam and the other five to challenge the RCI's findings.

However, the appellate court (Court of Appeal) had last August in a majority 2-1 decision, allowed the RCI findings to be challenged by the remaining three aggrieved parties. The other three, Dr Mahathir, Tan and Tengku Adnan, withdraw their application to appeal the High Court decision.

Meanwhile, Ahmad Fairuz's counsel, Bastian Vendargon, said his client had also been “adversely affected” by the commission, saying there was no proof that the person seen talking on his phone in the said video clip was speaking to his client.

"There are evidence (sic) by the Anti-Corruption Agency officer on records of phone calls, and none of it show the call was made.

"However, my client has been adversely affected as his reputation, being a former retired chief justice, is at stake," Vendargon said.

"How can the commission decide the person on the other line is Ahmad Fairuz when there is no iota of evidence to show this," he asked.

Co-counsel Mahinder Singh Dooku, also for Ahmad Fairuz, submitted that although this case attracted public interest, leave should have been allowed as their client was affected, and there would not have been other legal recourse other than the judicial review application to challenge the findings.

Another lawyer, B Lobo appearing for Eusoff (right), said the commission was held during a time of political pressure as this matter was brought by the opposition parties and this was building up just before the March 2008 general election.

"My client has no voice in Parliament and this just took place before the election, whereby Eusoff had for a long time been retired," he said.

Lobo said his client's position as a former CJ has also been adversely affected.

The lawyer also pointed out that the objection by the senior federal counsel to their client's leave application should have been made at the merits stage and not during the leave stage and that the Court of Appeal decision was right in deciding there should be a lower threshold applied than prima facie at the leave stage.

'We will not be hasty'

Justice Zulkefli, after hearing submissions from all parties, said the court will reserve judgment in delivering a decision on the case.

"We need time and would not be hasty in making a decision," said Zulkefli.

"We will deliver a judgment at a date to be fixed," he added.

Senior federal counsel Azizah Nawawi, who heads the Civil Division in the Attorney-General's Chambers, represented the commission in its appeal.

Azizah, in her appeal and her submissions earlier, held the view that the RCI findings do not constitute decisions and had not adversely affected the three.

“The said findings are not decisions which lead to administrative action or abstention from action by a public authority with executive power. Hence, the judicial review application should be dismissed,” she submitted.

Using Court of Appeal judge Justice Mohd Hishamudin Mohd Yunus' dissenting minority judgment, Azizah said the findings by the commissioners have no legal effect of consequences as the commission was tasked to investigate on the subject matter and recommend legal changes deemed necessary.

“The findings of the commission do not directly affect the legal rights of the respondents (Lingam, Ahmad Fairuz and Eusoff), and hence, they cannot be considered as decisions within the ambit of Order 53 (Rule 2(4) of the Rules of High Court 1980, and hence are not reviewable,” he said.

She further submitted there is no evidence that the attorney-general had recommended action on the said individuals as whatever action it would have to be built on evidence and not solely on the RCI.

Azizah also submitted that the AG's position in defending the commission is as the guardian of public interests and hence it had the right to represent the commission in its findings.

A verdict in this case would have repercussions and would constitute a landmark as it would have implications on whether RCI findings can be reviewed or not.