Tommy Thomas has filed an application with the High Court in Kuala Lumpur to strike out a suit against him and 12 others by former Asian International Arbitration Centre (AIAC) director N Sundra Rajoo.
In his affidavit, the former attorney-general also commented on the ruling that as AIAC director, Sundra Rajoo had immunity from criminal proceedings in regard to him being slapped with three criminal breaches of trust charges in March 2019 involving AIAC's funds amounting to RM1.01 million.
Thomas said this placed Sundra Rajoo (above) in a position above other Malaysians as well as the rulers.
“His immunity as director of the AIAC was a novel point of law never decided before by any court in Malaysia. It was finally determined by the Federal Court in the judicial review proceedings in April 2021.
“Under Clause 6 of Article III of the AALCO agreement, the director of the AIAC shall be entitled to immunities from legal process, as determined by the minister under the International Organizations (Privileges and Immunities) Act, 1992 (“Act 485”).
“Act 485 is a result of Malaysia acceding to the Vienna Convention on Diplomatic Privileges. It is the mechanism by which the protection of diplomatic immunity is conferred under the domestic laws of Malaysia.
“Diplomatic immunity is afforded because of necessity in relations between nation-states... But diplomatic immunity does not mean immunity from prosecution. The diplomat concerned would still face justice: but in his home country after his recall...
“The same reasoning applies to foreigners representing international organisations in Malaysia,” he added.
Plaintiff is a Malaysian citizen
However, Thomas said these considerations were not present in Sundra Rajoo's case because the latter is a Malaysian citizen.
“Malaysia is the host country, and the powers of the director are derived by his appointment by the government of Malaysia. Under the AALCO agreement, the director of the AIAC ‘shall be a national of Malaysia and shall be appointed by the host government in consultation with the secretary-general of the organisation’.
“There is no other ‘home country’ for the plaintiff to be tried for crimes. He cannot be repatriated abroad to face prosecution and justice. He is therefore answerable to the criminal laws of Malaysia; just like any resident here.
“For the plaintiff to have immunity from criminal prosecution in Malaysia would put him solely on a level above all the 30 million Malaysians in being immune from the due process of the law. He would even be a class above the nine rulers of Malaysia, who may themselves be sued or tried for criminal offences in the Special Court - pursuant to Articles 181 and 182 of the Federal Constitution.
“A director of the AIAC would be able to squander funds and benefit friends using his capacity as a director, free from prosecution. That cannot be correct. Worse still, he could commit murder with impunity.
“Such a proposition violates Article 8 of the Federal Constitution that all persons are equal before the law and entitled to equal protection of the law. Whatever the status under public international law, the plaintiff’s alleged immunity is unconstitutional under the laws of Malaysia,” he added.
In his suit filed last month, Sundra Rajoo accused the defendants, which included former MACC chief Mohamad Shukri Abdull and the government of “misfeasance in public office, malicious prosecution and false imprisonment”.
This was pursuant to his letter of demand seeking RM10 million and an apology.
However, Thomas contended that the grounds of Sundra Rajoo's application are that the writ of summons and statement claim disclose “no reasonable cause of action, are scandalous, frivolous and vexatious; prejudice, embarrass, and/or delay the fair trial of the action if any; and an abuse of the process of this honourable court”.
Apart from striking out the suit, he and the defendants are also seeking costs against the plaintiff.
No 'common design' to remove plaintiff
Thomas, in his affidavit, said that Sundra Rajoo's claims are unprecedented and without legal basis.
“They are unsustainable in law. If allowed, it would result in a floodgate of civil cases against the government, the PP (and the DPPs), the investigating officers, and all government personnel involved in the nation’s criminal justice system. That would be contrary to the national interest.
“Grave inroads into the system of independence entrenched under Article 145(3) of our Federal Constitution would result. Criminal activity would be unchecked if DPPs become afraid of charging persons due to a risk of opening themselves up to civil suits subsequently,” he added.
Thomas noted that MACC's investigations against Sundra Rajoo commenced following a widely circulated poison pen letter containing serious allegations against the plaintiff in September 2018.
Sundra Rajoo was arrested on Nov 20, 2018, and spent a night in the lock-up before being brought to the Magistrate's Court in Putrajaya the next morning.
“Neither I nor staff from the PP’s office was informed prior to the events of Nov 19 to 21 or involved in them,” said Thomas.
“These were matters within the sole purview of the MACC and carried out independently by the MACC. Any interference from any quarter would have been a cause for rendering the investigation and arrests illegal,” he added.
Thomas denied the plaintiff's allegation that the arrest and application to remand were under his and the MACC chief’s order, and that it was conducted by malice based on a “common design” between the two defendants to forcibly remove Sundra Rajoo from his position.
“As earlier stated, the arrest and remand application were conducted by officers of the MACC and did not involve officers of the Attorney-General’s Chambers. Investigating officers from investigating agencies frequently seek remands and extensions of remand without the involvement of a DPP.
“I vigorously deny the allegations of a ‘common design’ between Shukri and me. Although I had meetings and conversations with Shukri on matters of common interest, we never discussed the plaintiff’s case, nor his removal from office as AIAC director,” he added.
'Reputation of AIAC at stake'
However, Thomas conceded that his immediate concern was that with the arrest of the plaintiff, the AIAC was left without a director or one who was tainted.
“The highly publicised arrest of the plaintiff coupled with the poison pen letter meant that it was no longer tenable for him to remain as the director.
“The reputation of the AIAC had to be protected. No person arrested and facing charges should remain in office. I was most concerned with the standing of AIAC in the national and regional communities of arbitrators,” he added.
Following this, Thomas said he instructed his special officer Ann Khong Hui Li (Ann Khong), who is also named as a defendant, to telephone Philip Koh, who is representing the plaintiff, to inform his client that under no circumstances could the plaintiff remain as director of AIAC, and to demand that he tender in writing his resignation, failing which Thomas would dismiss him.
“The plaintiff complied, and within hours sent a handwritten note of his resignation to Ann Khong. The allegations contained in Paragraph 36.1(c) of the statement of claim that the plaintiff was informed that his resignation would deter further action being taken against him are untrue, and denied,” he added.
Thomas said he then contacted the late VK Liew, who was the minister overseeing legal affairs at the time, to inform him about the investigation and arrest.
“I further informed Liew that because the minister was conflicted (having been named in the poison pen letter along with his officers), he should recuse himself from all matters pertaining to the plaintiff. He agreed.
“I told him that I would act on an urgent basis, on behalf of the government, in appointing an acting director for the AIAC. Such a 'temporary' appointment could subsequently be confirmed or rejected by the cabinet. This arrangement was acceptable to Liew,” he added.
Thomas also claimed that Sundra Rajoo's allegations were meant to harass and intimidate the defendants who were public officers exercising their duties.
“The plaintiff is conducting piecemeal litigation and has crafted a vague case to support tortious claims of malicious prosecution, misfeasance of public office, and conspiracy to injure. They are unsustainable in law.
“For these reasons, the plaintiff’s statement of claim ought to be struck out under all four limbs of Order 18 Rule 19 of the Rules of Court, 2012, and I pray for such relief,” he added. - Mkini
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