Justice Amarjeet Singh will also rule whether RCI chairman Raus Sharif and two commission members, Baljit Singh Sidhu and Ridha Abd Kadir, should be recused from sitting on the tribunal.
The judge will likewise rule if the RCI hearing should be public.
Amarjeet said he would proceed to deliver his decision on the substantive matters of the application as the application only involves questions of law and there is a precedent for doing so.
Neither Mahathir’s lawyer Zainur Zakaria nor senior federal counsel Shamsul Bolhassan raised objections to the proposed course of action although today’s proceedings were only intended to address whether the former prime minister should be granted leave to pursue the matter.
Last week, the 98-year-old Mahathir, who was prime minister from 1981 to 2003 and again between May 2018 and February 2020, filed a certificate of urgency seeking a quick hearing of his leave application.
He wants the court to declare that as the subject matter of the inquiry, he has a right to legal representation under Section 18 of the Royal Commission of Enquiry Act 1950.
He also wants a mandamus order to compel the seven-member commission to allow his lawyers to be present during proceedings, serve his counsel with all documents including a witness list, and conduct the inquiry in public.
In addition, Mahathir wants all ongoing proceedings to be suspended pending the disposal of his judicial review application.
Mahathir claimed Zainur and lawyer Rafique Rashid Ali were barred from attending the RCI proceedings on May 24.
He also said Raus’s appointment was a gross violation of natural justice as he was an interested party.
Mahathir filed a judicial review in 2017 to challenge the legality of Raus remaining chief justice until 2020, after he was appointed as an additional judge of the Federal Court after reaching the retirement age set out in the Federal Constitution.
He said Baljit and Ridha would have predetermined the issues as they were also members of a special task force set up in 2021 to scrutinise and give recommendations regarding Batu Puteh, including a review of laws.
Today, Zainur submitted that Raus, Baljit and Ridha would be biased as Mahathir was the subject matter of the inquiry based on previous statements from those in authority.
“They have stated that there was an oversight by Mahathir and that he was negligent in the Batu Puteh issue,” he said.
Zainur, who was assisted by Rafique, said Mahathir was also blamed for having “sold the country”.
He said the inquiry should be transparent as the subject matter involved public interest.
Shamsul, assisted by senior federal counsel Ahmad Hanir Hambaly, said an RCI was not amenable to judicial review, as decided by the Federal Court in proceedings concerning a video clip of lawyer VK Lingam discussing the appointment of judges with a third party.
“An RCI is investigative in nature and only makes recommendations to the government,” he said.
Shamsul also said the proposition advanced by Mahathir’s lawyers that the court could step in to grant an aggrieved party a remedy, following a precedent case from New Zealand, was tantamount to a breach of natural justice and misconceived.
On Feb 3, 2017, Putrajaya filed an application to review the 2008 decision of the International Court of Justice awarding Singapore sovereignty over Batu Puteh.
The Pakatan Harapan government under Mahathir withdrew the application before it came up for hearing on June 11, 2018.
On Feb 14 this year, Yang di-Pertuan Agong Sultan Ibrahim consented to Raus leading the RCI to look into why Malaysia had dropped its territorial claim to Batu Puteh.