Federal Court reinstates High Court's decision that ex-AIAC director is entitled to immunity

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 (Sundra Rajoo), as a former high ranking officer of AIAC, was immune from prosecution for acts done within his official capacity.

“In our view, the word ‘legal process’ employed in Part II of the Second Schedule of the International Organisation (Privileges and Immunities) Act 1992 includes criminal proceedings,” she said.

The court answered the legal question in the affirmative, that the words "immunity from suit or from other legal processes” in the Second Schedule of the International Organisation (Privileges and Immunities) Act 1992 included criminal proceedings.

Justice Tengku Maimun also said that the Attorney-General has the sole and exclusive discretion to institute conduct or discontinue any proceedings for criminal offences.

However, she said the Attorney-General did not have the absolute and unfettered discretion in appropriate, rare and exceptional cases and that discretion was amenable to judicial review.

Justice Tengku Maimun said Sundra Rajoo's case is a proper and appropriate case to be first determined by judicial review.

In allowing Sundra Rajoo's appeal to set aside the Court of Appeal's decision, she said the court was not minded to reinstate the whole of the High Court's order except for the declaration that Sundra Rajoo had 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 judges 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 Court of Appeal held that the proper forum to determine Sundra Rajoo's immunity is the criminal court and not the civil court and the remedy to whether Sundra Rajoo was immune from prosecution should be tested in the criminal court after evidence has been presented by the prosecution.

The Court of Appeal three-member panel led by Justice Datuk Hanipah Farikullah had allowed the appeal by the Foreign Ministry, the Malaysian Anti-Corruption Commission (MACC), the Government of Malaysia and the Attorney General to set aside the Dec 31, 2019 decision of the High Court.

The High Court had allowed Sundra Rajoo's judicial review and granted him a declaration that he was immune from prosecution for acts done within his official capacity.

Sundra Rajoo, 65, was the head of AIAC from 2010 until late 2018.

On Jan 22 last year, Sessions Court judge Azura Alwi struck out the three criminal breach of trust charges involving AIAC funds amounting to more than RM1 million against Sundra Rajoo after ruling that she was bound by the High Court decision that he (Sundra Rajoo) was entitled to immunity from prosecution for acts done in his official capacity.

A team of lawyers led by Datuk Malik Imtiaz Sarwar represented Sundra Rajoo while senior federal counsels S. Narkunavathy and Suzana Atan appeared for the respondents.