Originally published in Skrine’s Legal Insights, Issue 3/2008 (October Issue), and updated in Issue 4/2008 © Skrine. Reproduced with permission.
The recent findings of the Royal Commission of Enquiry into the V.K. Lingam Video Clip have brought Royal Commissions (often called “royal commissions”) into the limelight. This article seeks to provide an overview of the statutory framework governing the creation and operation of such commissions.
The Commissions of Enquiry Act 1950 (“the Act”) is the statutory power for the appointment of any such commission.
Since the inception of the Act, there have been at least nine occasions in which a royal commission has been set up, namely:-
(1) Royal Commission of Enquiry into the V.K. Lingam Video Clip (2007-2008);
(2) Royal Commission for Police Reform (2004);
(3) Royal Commission to Investigate on the Alleged Injuries suffered by Datuk Seri Anwar Ibrahim while in Police Custody (1999);
(4) Royal Commission of Enquiry into the Fire at the Bright Sparklers Factory in Sungai Buloh New Village (1991);
(5) Royal Commission of Enquiry to Investigate a Fire at Sekolah Agama Rakyat Taufikah al-Halimah in Padang Lumat, Yan, Kedah (1989);
(6) Royal Commission of Enquiry on the Collapse of the Upper Deck of the Pengkalan Sultan Abdul Halim Ferry Terminal in Butterworth (1988);
(7) Royal Commission on the Teaching Services (1971);
(8) Royal Commission of Enquiry to Investigate the Workings of Local Authorities in West Malaysia (1968);
(9) Royal Commission on Salaries and Conditions of Service of the Public Service (1965).
Establishment of a Royal Commission
Royal Commissions may be convened by the Yang di-Pertuan Agong “when it appears to him to be expedient to do so”. Read with Article 40 of the Federal Constitution, it would appear that this would entail acting only on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
Essentially, Royal Commissions are convened to look into matters of considerable public importance. These matters include the conduct of any federal officer, the conduct or management of any department of the public service or of any public institution and any matter in which an enquiry would be for the public welfare, except the following:-
(a) a matter involving any question relating to the Islamic religion or the Malay customs;
(b) a matter relating to Sabah or Sarawak included in the State List of the Federal Constitution or dealt with by State Law, as provided in Item 10 of the State List of the Federal Constitution.
The Yang di-Pertuan Agong will determine the number of commissioners, the place and time when the enquiry will be held and its report submitted, and the manner the enquiry will be executed. The Yang di-Pertuan Agong has the discretion to decide whether the enquiry or any part thereof will or will not be held public.
Terms of Reference
The terms of reference of a commission define the objectives and the parameters of the enquiry. The terms of reference of a commission are determined by the Yang di-Pertuan Agong on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet. The proper extent of the terms of reference of a commission is often a serious question especially with regards to matters of great controversy.
Powers of the Commissioners
The powers conferred upon the commissioners are essentially quasi-judicial in nature, and the proceedings of a royal commission are deemed to be judicial proceedings under the Act. Because of this nature of the task, retired senior judges are often appointed as commissioners. Like judges, commissioners are expected to carry out their duties independently, impartially and free from fear.
The commissioners have the powers to procure and receive all necessary evidence, written or oral, and to examine all persons who have knowledge of the matter in question as witnesses. The evidence of the witnesses can be taken on oath or affirmation or by way of statutory declaration.
The Act also confers upon the commissioners the power to summon any person in Malaysia to appear before them to give evidence and to issue a warrant of arrest to compel the attendance of any person who, after having been summoned to attend, fails to do so, to give evidence.
Witnesses are protected against self-incrimination under the Act. The evidence taken at an enquiry will not be admissible in any civil or criminal proceedings against the person who gave the evidence.
To assist the commissioners in the enquiry, the commissions are also empowered to require the Public Prosecutor to cause any matter relevant to the enquiry to be investigated. Any person appointed by the Public Prosecutor to investigate any such matter will have powers similar to that given to the police officers in any seizable case.
Additionally, the commissioners have the power to hold any person for contempt for any act of disrespect or any insult or threat offered to any of the commissioners while sitting in commission or at any other time and place on account of his proceedings in his capacity as a commissioner.
Findings of a Commission
The role of a royal commission is to merely enquire and report – it does not have the power of punishment.
While a royal commission is only a fact-finding body, it would normally be required to make recommendations based on its findings. These recommendations are not binding on the Government who may adopt some or all of the recommendations or disregard the same.
Challenging a Commission’s Findings
Certain parties in the Royal Commission of Enquiry into the V.K. Lingam Video Clip have applied to Court for a judicial review of that Commission’s findings. This is an unprecedented move in Malaysia and it will be interesting to see the outcome of these proceedings. ***
*** Update in Issue 4/2008 Skrine’s Legal Insights
These applications were dismissed by the High Court on 12 December 2008.
Abdul Kadir Musa J. held that the Royal Commission did not make any decisions and merely conveyed their findings in their Report to the Yang di-Pertuan Agong. The judge rejected the applicants’ contention that the findings should not be construed as decisions of a public authority which may be subject to judicial review under Order 53 Rule 2(4) of the Rules of the High Court, 1980.