KUALA LUMPUR, June 24 —  Malaysia will have its 23-year-old multi-billion-ringgit Bank Negara Malaysia (BNM) foreign exchange scandal examined by a Royal Commission of Inquiry (RCI), the fifth of its kind in slightly over a decade.

While further details of this RCI on the scandal from the 1980s and 1990s have yet to be announced, let’s have a quick look on what such bodies can do.

1. Reviewing something from the past?

This is not the first time that an RCI is tasked with tackling a decades-old issue. The most recent RCI was formed in 2012 to look into Sabah’s long-standing illegal immigrants problem and allegations of politically-motivated illegal issuance of identity cards (IC) during the Mahathir administration in exchange for votes.

In other instances, RCI panels are formed with a shorter time-gap after the occurrence of controversial incidents, such as the 1999 RCI on the 1998 injuries suffered by Datuk Seri Anwar Ibrahim while in police custody.

2. What can be probed?

According to the Commission of Enquiry Act 1950, the Yang di-Pertuan Agong may form a commission to enquire into matters ranging from the conduct of any federal officer; the conduct or management of any department of the civil service; to the conduct or management of any public institutions not solely funded by the government.

The type of matter that can be investigated by such commissions seems almost limitless, as the Act says that it could be “any” matter which the Yang di-Pertuan Agong thinks would be in favour of public welfare to enquire into. The only exception under the same law are matters related to Islam or the Malay custom; or matters falling under item 10 of the Federal Constitution’s State List when it comes to Sabah or Sarawak.

3. Who are the commissioners?

There are no legal requirements on the qualifications or limits on the number of commissioners that can be appointed, but former judges or those with legal background are often appointed to sit on RCI panels. In recent years, there have been as many as five panel members.

Cheow Wee, one of five lawyers appointed by the Malaysian Bar to question witnesses during the 2011 RCI hearings on the death of DAP political aide and anti-corruption witness Teoh Beng Hock, said he believed that it is preferable but not mandatory to have those with legal background on RCI panels. He said the composition of RCI panels may also depend on the subject matter of reference.

“In our RCI, there were two medical doctors on the panel viz. a pathologist and a psychiatrist academician as these two areas were relevant in Teoh Beng Hock’s RCI,” he told Malay Mail Online when contacted yesterday.

4. Commissioners’ powers

Commissioners have wide-ranging powers under Section 8 of the same Act, including obtaining all written and oral evidence and requiring such evidence to be made on oath or by statutory declaration.

They can summon anyone in the country to show up to provide evidence or to be questioned as a witness, and can even issue arrest warrants if those summoned fail to turn up without a satisfactory reason.

Commissioners have the power to make the enquiry partially or fully open to the public and the media, and are also protected from lawsuits for any of their actions in the course of their duties.

5. RCI proceedings

While officers from the Attorney-General Chambers (AGC) are usually appointed by the Yang di-Pertuan Agong as “conducting officers” who question witnesses, commissioners may themselves pose questions to witnesses.

Witnesses may testify freely, as absolute privilege is granted under the Act for evidence provided to the RCI panel and they would not be liable in lawsuits over such evidence. The evidence will also not be admissible in any civil or criminal court cases against those who give evidence, unless they are prosecuted for giving or fabricating false evidence.

A maximum two-year jail term awaits those who try to block or use threats to stop someone from providing evidence to the commissioners, or if they threaten, insult or injure witnesses.

Beyond AGC lawyers, Section 18 of the Act says those whose conduct are under scrutiny by the RCI panel or who are merely concerned about the matter are entitled to be represented by a lawyer.

In the RCI hearings for Teoh’s case for example, Cheow said witnesses were first questioned by the AGC, followed by lawyers representing the Bar Council and subsequently the Malaysian Anti-Corruption Commission (MACC).

Cheow explained that the Malaysian Bar had informed the panel in that case that it wishes to participate the inquiry as a “concerned party” and that it was admitted as such, adding: “Our role and purpose is to represent the public interest, the legal profession and to assist the Commission in its investigation under reference to uncover the truth”.

6. Limitations / no magic bullet

The broad powers granted to commissioners does not mean that such panels will go about randomly seeking out information on an issue, as terms of reference set out the parameters of their scope of enquiry.

The five-man Sabah RCI panel was conscious of its own limitations, addressing in its report the “misconception” that it would be the “be-all and end-all” to the state’s illegal immigrants problem.

“The RCI is bound by the Terms of Reference. We can only inquire, make findings and thereafter present recommendations to the relevant authorities. Very much depends on the authorities concerned. The power to translate the recommendations into action lies with them,” it said in the postscript section of its 368-page report.

The Federal Court had similarly in a 2011 case commented on the nature of an RCI panel, saying: “The Commission merely investigates and does not decide. Its findings and recommendations are not binding on anybody, not even the government.”

7. Rarity

While politicians and civil society frequently call for RCI panels that are seen as impartial to be set up for controversial national matters such as on mass graves of migrants and 1Malaysia Development Berhad, the times when the federal government decides to do so are few and far between.

Perhaps mindful of the need to maintain separation of powers by not encroaching into matters falling under the executive arm of the government, the Federal Court had in March dismissed lawyer P. Uthayakumar’s bid for the judiciary to direct the federal government to propose to the Yang di-Pertuan Agong an RCI for reforms of prison conditions.