JANUARY 14 — When the Cabinet agrees to set up a Royal Commission of Inquiry (RCI) to further examine the allegations made by former attorney-general Tan Sri Tommy Thomas in his controversial memoir, My Story: Justice in the Wilderness, it means it agrees to the set-up as governed by and under the law.

The law is to be found in the Commissions of Enquiry Act 1950 (Act 119), an Act to make provision for the holding of commissions of enquiry.

Section 2(1) of the Act vests in the Yang di-Pertuan Agong the power to issue a Commission appointing one or more commissioners and authorising the commissioners to enquire into: —

(a) the conduct of any federal officer;

(b) the conduct or management of any department of the public service of Malaysia;

(c) the conduct or management of any public institution which is not solely maintained by State funds; or

(d) any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare, not being (i) a matter involving any question relating to the Islamic religion or the Malay custom, or (ii) in relation to Sabah or Sarawak, a matter specified in item 10 of the State List.

The law is to be found in the Commissions of Enquiry Act 1950 (Act 119), an Act to make provision for the holding of commissions of enquiry. — Unsplash pic
The law is to be found in the Commissions of Enquiry Act 1950 (Act 119), an Act to make provision for the holding of commissions of enquiry. — Unsplash pic

A Commission issued under section 2(1) above shall have its terms of reference (TOR) which specify the subject of the enquiry, pursuant to which it may, among others —

  • direct where and when the enquiry shall be held and the report thereof rendered;
  • direct whether the enquiry or any part thereof shall or shall not be held in public; and
  • generally prescribe how the Commission shall be executed. (Section 3(1) of the Act)

The appointed commissioners have, among others, the following powers:

  • to procure and receive evidence, written or oral, and to examine witnesses as the commissioners may think it necessary or desirable to procure or examine;
  • to require the evidence (whether written or oral) of any witness to be made on oath or affirmation or by statutory declaration;
  • to summon any person in Malaysia to attend any meeting of the commissioners to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession;
  • to issue a warrant of arrest to compel the attendance of any person who, after having been summoned to attend, fails to do so without excuse;
  • notwithstanding any written law relating to evidence, to admit any evidence, whether written or oral, which might be inadmissible in civil or criminal proceedings. (Section 8 of the Act)

Clearly from the above, the commissioners embark on an enquiry and not a trial. The commissioners alone decide what is “necessary or desirable to procure or examine” in the enquiry.

In other words, the commissioners cannot be dictated on “who should or should not be called, and what questions he should be asked.” (See the ruling of the RCI to investigate and inquire into the circumstances pertaining to the injuries suffered by Datuk Seri Anwar Ibrahim whilst in police custody [1999] 1 MLJ cxxi)

The commissioners are further given the discretion to follow its own procedure. (Section 22 of the Act)

Accordingly, while the Cabinet can recommend the RCI’s membership, duration and TOR, it cannot dictate the RCI to “dig deep” into Thomas’ controversial memoir.

The RCI cannot but be confined to its TOR.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.