Until it is officially confirmed, lets not be carried away by Sin Chew Daily report. Maybe the 3 member Haidar Panel just said , “we cannot make a conclusive determination on authenticity of video clip because of the lack of witnesses coming forward, a problem we cannot resolve by reason that, unlike a Royal Commission, we have no legal powers to compel and subpoena witnesses to give evidence under oath”.

Strictly, this does not tantamount to he Haidar Panel’s recommending a Royal Commission – for to recommend such is outside its mandate confined to ascertaining the clip’s authenticity – but obliquely, by implication, it may, however, be construed as indirectly suggesting one if the objective were still to ascertain authenticity of video clip.

“…//….They should just do it instead of waiting for the 3 man panel…//…” – Rocky. In customary incisive straight-to-the-point style, what Rocky said is correct but the Question remains – even if it were better than Haidar Panel in terms of (i) having been vested legal powers to compel witnesses (ii) more flexibility in terms of determining its own terms of reference for enquiry (including extending beyond authenticity of video clip to perhaps fixing of judicial appointments and judiciary’s independence), one has to remember that how wide the scope of (ii) and how “independent” the Royal Commission is will very much depend on who is appointed by Yang DiPertuan Agong (“YDPA”) to sit on it.

Up to now everyone has implicitly assumed that YDPA will appoint internationally respectable jurists, leaders of retired legal and civic organizations or distinguished ex judges or lawyers to sit in the Royal Commission. Is this a valid assumption? From who does YDPA seek advice on possible candidates? Ideally he confers with HRH Sultan of Perak Sultan Raja Azlan Shah but what if he does not? And what if he is advised that the Constitution requires him to seek the advice of the government and (for the sake of argument & dramatization of a point here) the government comes out with an unthinkable list – the same Haidar Panel members (Tan Sri Haidar Mohd Noor, Ex Judge Datuk Mahadev Shankar and Tan Sri Lee Lam Thye) with Tun Hamid (as suggested by Atan) and Tun Eusoffee Chin thrown in?

Let’s take the last Royal Commission that investigated the beating of Datuk Seri Anwar Ibrahim received in police custody by now-resigned inspector-general of police, Tan Sri Abdul Rahim Noor. I remember the chairman was former chief judge of Malaya Anuar Zainal Abidin, there was also ex-attorney-general Tan Sri Abu Talib Othman and another. Then the Royal Commission members were also officially appointed by YDPA but who can categorically say that it was not on the advice and nomination of then premier Tun Dr Mahathir Mohamad that ended in Rahim Noor given a comparatively light slap on the wrist?

Complex constitutional points are involved here. If you read RPK’s blog, you’d know that he has done all the legal research and has concluded that the YDPA has personal discretion under Article 40 to act on three matters – (a) the appointment of a Prime Minister subject to him being wakil rakyat and commanding majority confidence of the Dewan Rakyat (b) withholding of consent to a request for the dissolution of Parliament and (c) the requisition of a meeting of the Conference of Rulers concerning solely issues pertaining to the privileges, position, honours and dignities of our Rulers.

On all other matters the YDPA is constitutionally required to act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution.

So what happens if it is advised to YDPA that the question of who shall sit in the Royal Commission is a matter that is not within (a)(b) or (c) above (expressly provided by the Constitution) and hence will fall under the general area by which he has to accept the advice of the cabinet or even Datuk Seri Nazri Aziz or Datuk Seri Zainuddin Maidin acting under the general authority of, and delegation from the Cabinet or the PM?

To argue that YDPA has residual powers outside and before constitutionalism in 1957 is at best an argument only – it being equally plausible to argue that because of constitutionalism that made the position of YDPA no more that of an absolute monarch, HRH has no such residual powers and he has therefore to act as provided strictly by the constitution, which, in turn, based on interpretation of Article 40 appears that, on matter of Royal Commission, he has to act on the advice of the government of the day!

This being the case how much more independent can the Royal Commission get as compared against the Haidar Commission?

Yes the RC has more legal powers to investigate but what the RC investigates, how wide the scope of enquiry is also dependent on how its members determine its frame of reference and how independent the RC members are from Executive influence.

And how independent are they if YDPA has, in relation to their appointment, to take the advice from PM or even (for exaggeration purposes) Nazri or Zam if they are delegated such advisory role by the cabinet?

Our call for the RC would all become a Shakespeare’s Much Ado About Nothing – and this may be the sole reason, if ever there were one, why the government could concede the civil society’s demand for Royal Commission. It has nothing that much more to lose! In fact it has much more to gain by telling everyone, now there’s no need for further Bersih demonstration!