Syed Iskandar Syed Jaafar Al-Mahdzar said they could file an originating summons in the High Court to seek declaratory relief like stating that the recommendations were not binding on the public prosecutor.
“The affected plaintiffs could also seek a declaration that the report be dismissed as the RCI chairman was not independent,” he told FMT.
Syed Iskandar said any relief could be sought and it all depended on how the pleadings were drafted.
The lawyer said this in response to the current legal position that the findings of a RCI could not be reviewed, as decided by the Federal Court in the VK Lingam video clip case in 2011.
The apex court ruled that the findings of a RCI cannot be reviewed, saying the commissioners had merely made findings and not a decision.
In that proceeding in 2008, the panel chaired by a retired Federal Court judge concluded several individuals were involved in judicial fixing.
The panel also recommended that appropriate action be taken against Lingam, retired chief justices Eusoff Chin, Ahmad Fairuz Sheikh Abdul Halim, tycoon Vincent Tan, former prime minister Dr Mahathir Mohamad, businessman and former minister in the Prime Minister’s Department Tengku Adnan Tengku Mansor for misconduct.
It also found that there was prima facie evidence to investigate the six men for offences under the Sedition Act, Official Secrets Act, the Penal Code and the Legal Profession Act.
However, no one was prosecuted.
Syed Iskandar said the prospect of the court hearing any challenge on the RCI on forex trading losses by way of judicial review was too remote because the lower court has to follow the legal precedent.
“It is also unlikely for the Federal Court to depart from its earlier ruling (2011) as it was made by the bench that consisted of the current Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin,” he said.
The third member of the bench Abdull Hamid Embong has retired.
The five-man RCI, chaired by Mohd Sidek Hassan, in its report made public on Thursday, concluded there were elements of hidden facts and information relating to forex losses suffered by Bank Negara Malaysia (BNM) and misleading statements given to the cabinet, Parliament and the public.
The report said BNM suffered a total loss of RM31.5 billion between 1992 and 1994.
The commission proposed that the police open investigations into possible criminal breach of trust or cheating by various parties, including Mahathir and then finance minister (1991-1998) Anwar Ibrahim.
Special mention was made of ex-Bank Negara adviser Nor Mohamed Yakcop, whom the report named as “principally liable for criminal breach of trust” while Daim Zainuddin, another former finance minister (1984-1991), was said to have aided and abetted Nor Mohamed.