The Pulau Batu Puteh Royal Commission of Inquiry (RCI) will continue to operate behind closed doors following former Prime Minister Tun Dr. Mahathir Mohamad's unsuccessful legal bid to have the proceedings made public. High Court Judge Datuk Amarjeet Singh Serjit Singh issued this ruling just before Dr. Mahathir was set to provide testimony to the RCI at 11 AM on June 12.
In delivering the verdict, Judge Amarjeet referenced a 2011 Federal Court decision regarding a video clip of lawyer VK Lingam discussing judicial appointments. The Federal Court had determined that RCIs merely make findings and recommendations without binding authority over anyone, including the government, making them not subject to judicial review. “The subject matter is not amenable to judicial review,” Amarjeet explained.
Additionally, Amarjeet dismissed Dr. Mahathir's attempt to remove three panel members, including the chairman, and to suspend the ongoing proceedings pending the outcome of his judicial review application. He noted that allowing such challenges could undermine the RCI's effectiveness and waste public funds, particularly in matters of significant public interest like the loss of Malaysia's land.
However, Amarjeet did grant permission for Dr. Mahathir and his legal team to be present throughout the RCI proceedings. Despite this, until a court order is granted, Dr. Mahathir's lawyers will not be allowed to attend the hearings unless permitted by the commission. The court set June 26 for case management.
Dr. Mahathir was represented by lawyers Zainur Zakaria, Muhammad Rafique Rashid Ali, and Nizam Bashir. Senior federal counsels Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi represented the Attorney General’s Chambers (AGC). Outside the courtroom, Muhammad Rafique mentioned that he would seek Dr. Mahathir’s instructions on whether to appeal today's ruling.
Dr. Mahathir filed the judicial review application on June 5 with a certificate of urgency after the RCI’s May 21 decision denied his legal representation and refused to remove the three RCI members or hold the proceedings publicly. In his application, Dr. Mahathir named RCI chairman Tun Md Raus Sharif and his deputy Tan Sri Zainun Ali as the first and second respondents. The third to eighth respondents include RCI members Datuk Baljit Singh Sidhu, Datuk Johan Shamsuddin Sabaruddin, Prof Datin Faridah Jalil, Datuk Mohammed Ridha Abd Kadir, Dickson Dollah, and RCI Secretary Zamri Misman.
Dr. Mahathir seeks a declaration recognizing him as an individual involved in or related to the RCI investigation under Section 18 of the Commissions of Inquiry Act 1950 (Act 119). He also requests an order for the RCI proceedings concerning the sovereignty of Batu Puteh, Middle Rocks, and South Ledge to be conducted publicly. Additionally, he seeks to prohibit Md Raus from acting as RCI chairman and to prevent Dr. Baljit and Mohammed Ridha from participating as members of the RCI, citing potential bias due to their previous involvement in a special task force on Batu Puteh issues.
In 2017, Dr. Mahathir had filed a judicial review challenging the legality of Raus’s extended tenure as Chief Justice. He argued that Baljit and Ridha might have pre-determined views, as they were part of the 2021 task force reviewing the Batu Puteh matter.
The establishment of the RCI and the appointment of its seven members were approved by His Majesty Sultan Ibrahim, King of Malaysia, on February 14. On May 23, 2008, the International Court of Justice (ICJ) ruled that Singapore held sovereignty over Batu Puteh while Malaysia retained sovereignty over Middle Rocks. Ownership of South Ledge was to be determined by maritime boundaries.
The Malaysian government later sought a review of the ICJ's decision, but under the Pakatan Harapan government led by Dr. Mahathir, the application was withdrawn before the hearing on June 11, 2018.
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