PUTRAJAYA – A seven-judge Federal Court bench today ruled that former Asian International Arbitration Centre (AIAC) director Datuk Prof N. Sundra Rajoo is entitled to immunity from prosecution for acts committed while in office.
The bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, in a unanimous decision allowed Sundra Rajoo’s appeal to reinstate the high court’s decision that he, as a former high-ranking officer of AIAC, is immune from prosecution for acts done within his official capacity.
“In our view, the words ‘legal process’ employed in Part II of the Second Schedule of the International Organisation (Privileges and Immunities) Act 1992 include criminal proceedings.”
The court answered the legal question in the affirmative, that the words “immunity from suit or from other legal processes” in the Second Schedule include criminal proceedings.
Tengku Maimun said the attorney-general has sole and exclusive discretion to institute conduct or discontinue any proceedings for criminal offences.
However, she said, the AG does not have absolute and unfettered discretion in appropriate, rare and exceptional cases, and that discretion is amenable to judicial review.
She said Sundra Rajoo’s case is proper and appropriate to first be determined by judicial review.
Allowing his appeal to set aside the Court of Appeal’s decision, she said the apex court is not minded to reinstate the whole of the high court’s order, except for the declaration that Sundra Rajoo has immunity as a former high-ranking officer.
The other judges on the bench were Court of Appeal president Tan Sri Rohana Yusuf, and Federal Court justices Datuk Seri Mohd Zawawi Salleh, Puan Sri Zaleha Yusof, Datuk Zabariah Yusof, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.
On June 25 last year, the appellate court held that the proper forum to determine Sundra Rajoo’s immunity is the criminal, not civil, court, and the remedy to whether he is immune from prosecution should be tested in the criminal court after evidence has been presented by the prosecution.
A three-member Court of Appeal panel led by justice Datuk Hanipah Farikullah allowed an appeal by the Foreign Ministry, Malaysian Anti-Corruption Commission, government and AG to set aside the December 31, 2019 high court decision.
The high court allowed Sundra Rajoo’s judicial review and granted him a declaration that he is immune from prosecution for acts done within his official capacity.
Sundra Rajoo, 65, was head of AIAC from 2010 to late 2018.
On January 22 last year, sessions court judge Azura Alwi struck out three counts of criminal breach of trust involving more than RM1 million in AIAC funds against Sundra Rajoo after ruling that she is bound by the high court decision that he is entitled to immunity.
A team of lawyers led by Datuk Malik Imtiaz Sarwar represented Sundra Rajoo, while senior federal counsel S. Narkunavathy and Suzana Atan appeared for the respondents. – Bernama, April 30, 2021
