Bastian Pius Vendargon said one has to read the Commissions of Enquiry Act 1950 which allows an RCI or tribunal to investigate the conduct or management of any public institution.
“An RCI can be established to investigate interference by certain parties or the executive. This in no way interferes with constitutional powers given to a tribunal to investigate ethical misconduct of judges who are no longer in office,” he said.
Vendargon was responding to the views of lawyer Philip Koh that any call to set up an RCI to investigate allegations of interference in the judiciary must be rejected.
Koh said the judiciary is part of a basic feature of the constitution and an important bastion of the separation of powers system.
Vendargon, however, said procedures as outlined under Article 125 of the Federal Constitution could be adopted like the setting up of a tribunal to remove serving individual judges.
Last week, Prime Minister Ismail Sabri Yaakob reportedly agreed with the Umno Supreme Council’s suggestion to set up an RCI to investigate former attorney-general Tommy Thomas’ claims that there was executive interference in the appointments of top judicial administrators when Pakatan Harapan was in power.
Lawyer Mohamed Haniff Khatri Abdulla also suggested that if an RCI is formed, it should also probe allegations made by retired Court of Appeal judge Hamid Sultan Abu Backer that top judicial officers interfered in the outcome of several judgments.
Vendargon said that in 2007, the government set up an RCI after a video clip emerged showing lawyer V K Lingam discussing the appointment of top judges “friendly” to Barisan Nasional .
“The tribunal came out with a report, proposing to the authorities to act against several individuals and to tighten the judges’ appointment process,” he said.
The video, recorded in secret by former Kelana Jaya MP Loh Gwo Burne in December 2001, is said to have shown Lingam brokering a deal with Ahmad Fairuz Abdul Halim purportedly for the latter to be promoted to chief justice.
Fairuz was the chief justice from 2003 to 2007.
In its 2008 report, the five-man RCI led by former chief judge of Malaya Haidar Mohamed Noor, concluded that the video clip was authentic, and that Lingam was the person in conversation with Fairuz over the appointment of other judges.
The commission had also recommended that appropriate action be taken against six individuals for misconduct, namely Lingam, Fairuz, former chief justice Mohamed Eusoff Chin, tycoon Vincent Tan, former prime minister Dr Mahathir Mohamad, and then minister in the Prime Minister’s Department Tengku Adnan Tengku Mansor.
No action was however taken against them except for Lingam, who was barred from practising for professional misconduct by the disciplinary board of the Malaysian Bar.
All six also filed a judicial review to challenge the RCI findings but the Federal Court in 2013 ruled that the tribunal’s findings could not be reviewed as the commissioners merely made findings and not decisions.
Meanwhile, lawyer T Gunaseelan pointed out that Parliament had also passed the Judicial Appointments Commission Act in 2008 as proposed by the RCI chaired by Haidar for a more transparent selection of judges for appointments and promotions.
“There are many reservations about the Act but it was a product of the RCI,” he added.