Federal Court rules ex-AIAC director has immunity from criminal charges

Federal Court rules ex-AIAC director has immunity from criminal charges
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PUTRAJAYA (April 30): The Federal Court today granted a declaration that Former Asian International Arbitration Centre (AIAC) director Datuk N Sundra Rajoo has the privilege of immunity against prosecution from acts committed while he held his position in office as AIAC director.

A seven-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat answered in the positive to the questions of law, namely on Sundra Rajoo's immunity and whether the Attorney General's (AG) discretion under Article 145(3) of the Federal Constitution is amenable for judicial review.

In reading out the decision of the bench today, Tengku Maimun answered two questions in the affirmative on whether the AG's discretion is amenable to judicial review in appropriate circumstances.

AG does not have 'absolute and unfettered' discretion

She said that while the AG has sole and exclusive discretion to institute conduct or discontinue any proceedings for criminal offences under Article 145(3) of the Federal Constitution, he however does not have "absolute and unfettered" discretion.

"Under this article the AG has sole and exclusive discretion. However the AG does not have an absolute and unfettered discretion. In appropriate, rare and exceptional cases, that discretion is amenable to judicial review," she said.

Besides Tengku Maimun, the bench also comprised Court of Appeal president Tan Sri Rohana Yusuf, Federal Court judges Datuk Seri Mohd Zawawi Salleh, Puan Sri Zaleha Yusof, Datuk Zabariah Mohd Yusof, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

Today's decision was done via Zoom after the bench heard arguments from lawyers from both camps.

Datuk Malik Imtiaz Sarwar appeared for Sundra while senior federal counsel S Narkunavathy appeared for the Foreign Ministry, the AG, the Malaysian Anti-Corruption Commission and the government as respondents.

The decision was in response to four questions posed by Sundra's lawyers.

The first question was whether the words "immunity from suit or from other legal process" in the Second Schedule of International Organizations (Privileges and Immunities) Act 1992 include criminal proceedings? To this question, the bench ruled in the affirmative.

The second question was whether the immunity granted to various persons pursuant to the Act are: 1) limited by the words of section 8A(1) of Act 485 only to acts and things done that are not for their personal benefit and 2) accordingly, whether charges can be laid against such persons notwithstanding the absence of a waiver by the appropriate authority of the international organisation? The bench ruled in the negative for the second question.

The bench answered in the affirmative to the third question aforementioned in this article.

She said that this case is amenable to judicial review.

"On the factual matrix and circumstances in this case where the legal issue of immunity and jurisdiction can be determined, this would be a proper and appropriate case to be first determined by judicial review," she said.

As for the fourth question on whether the High Court in judicial review proceedings has the jurisdiction and power, in appropriate cases, to grant relief including to quash criminal charges laid by the public prosecutor and issue orders of prohibition against proceedings in subordinate courts, the bench explained that there is no necessity to answer the question.

It was reported in 2019 the High Court's Datuk Seri Mariana Yahya had ruled that Sundra enjoyed the privilege of immunity against prosecution from acts committed while he held his position in office as AIAC director. Justice Mariana has since been elevated to the Court of Appeal.

Sundra was charged with three criminal breach of trust charges in March 2019 involving the centre's fund amounting to RM1.01 million.

Justice Mariana quashed the charges.

Last year, the Court of Appeal reversed the High Court decision when a three-member bench held that the right forum to determine Sundra's immunity was the criminal court and not the civil court.

After Sundra's removal, he was replaced by Vinayak Pradhan in November 2018. Vinayak however passed away last year, and the government announced the appointment of former Federal Court judge Tan Sri Suriyadi Halim Omar as the new director.

Surin Murugiah