PUTRAJAYA (Dec 17): Former Asian International Arbitration Centre (AIAC) director Datuk N Sundra Rajoo was today granted leave by the Federal Court for the apex forum to decide on the immunity from criminal charges levelled against him previously.
A three-member bench led by Court of Appeal President Tan Sri Rohana Yusuf allowed 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.
“The apex court allowed the full merits to be heard in the appeal,” said Sundra Rajoo's lawyer Datuk Baljit Singh Sidhu when contacted by theedgemarkets.com.
Baljit appeared with Datuk Malik Imtiaz Sarwar, K Shanmuga and Datuk Dr Ahmad Shukor Ahmad, while senior federal counsel S Narkunavathy appeared for the Foreign Ministry, the AG, the Malaysian Anti-Corruption Commission and the government as respondents.
Besides Justice Rohana, the other judges were Federal Court judges Puan Sri Zaleha Yusof and Datuk Rhodzariah Bujang.
The hearing of leave to appeal was done online, and with today's decision the Federal Court will fix another date to hear the merits of the appeal.
The AIAC provides world-class institutional support as a neutral and independent venue for the conduct of domestic and international arbitration and other alternative dispute resolution proceedings.
When contacted, Narkunavathy said she objected to the leave application on the grounds that the questions posed are fact-centric and not questions of law.
“The question is academic because there are no charges against Sundra Rajoo,” she said.
Nevertheless, the apex court allowed the questions, which according to Shanmuga are as follows:
- 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?
- Whether the immunity granted to various persons pursuant to the Act are:
- 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
- accordingly, whether charges can be laid against such persons notwithstanding the absence of a waiver by the appropriate authority of the international organisation?
- Whether the AG's discretion pursuant to Article 145(3) of the Federal Constitution is amenable to judicial review in appropriate circumstances?
- 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.
Previously, it was reported on Dec 31 last year that the High Court's Datuk Seri Mariana Yahya had ruled Sundra Rajoo enjoys the privilege of immunity against prosecution from acts committed while he held his position in office as AIAC director.
Mariana said because Sundra Rajoo enjoys immunity, the three criminal breach of trust (CBT) charges which were levelled against him in March 2019 involving the centre's fund amounting to RM1.01 million have also been quashed by the court.
The charges were made against him at the Sessions Court, and following the High Court decision the charges were quashed by the Sessions judge.
However, the Court of Appeal had on June 25 reversed the High Court decision when a three-member bench held that the right forum to determine Sundra Rajoo’s immunity was the criminal court and not the civil court.
This resulted in the ongoing appeal at the Federal Court.
Since Sundra Rajoo was removed, he was replaced by Vinayak Pradhan in November 2018. Vinayak however passed away earlier this year, and last month the government announced the appointment of former Federal Court judge Tan Sri Suriyadi Halim Omar as the new director.