MALAYSIA Tanah Tumpah Darahku


Thursday, August 4, 2022

I'm constitutionally empowered to charge Sundra, ex-AG reiterates


Tommy Thomas has reiterated that he had constitutional discretion as then attorney-general (AG) to levy criminal charges against former Asian International Arbitration Centre (AIAC) director Sundra Rajoo.

The former top government lawyer claimed that his decision is non-justiciable, meaning that it is not something that could be challenged in court pursuant to Article 145(3) of the Federal Constitution.

Article 145 deals with the AG’s power to initiate, conduct and discontinue criminal prosecution.

Thomas (above) pointed out that the three criminal breach of trust (CBT) charges against Sundra have long been quashed by the Kuala Lumpur Sessions Court in January 2020.

Additionally, the Federal Court last year ruled that Sundra was entitled to immunity for acts done while holding the office of AIAC director, with the apex court later further ruling that the AG must be careful when exercising his discretion to charge a person in court.

The 2021 apex court ruling was in relation to Sundra’s civil challenge (via judicial review) against the authorities’ decision to prosecute him in court.

“The first defendant (Thomas) is immune from and cannot be made liable for the plaintiff’s (Sundra) claims in these proceedings (including the torts of ‘malicious prosecution’ and ‘misfeasance in public office’) by virtue of the non-justiciability of the first defendant’s discretion to prefer the three charges (against Sundra) under Article 145(3) of the Federal Constitution.

“In the alternative, the only avenue available to the plaintiff against the first defendant’s actions as complained of by the plaintiff in this claim, lay in judicial review proceedings, which have since been exhausted by the plaintiff, and which the plaintiff is now barred from re-litigating, as pleaded above,” Thomas claimed.

The former AG made these contentions in his statement of defence against Sundra’s civil suit over alleged wrongful prosecution over the three CBT charges.

The defence statement dated Aug 2 was filed by law firm Tommy Thomas at the Kuala Lumpur High Court, with today being the deadline to make the filing.

Failed strike-out bid

Thomas previously mounted an unsuccessful bid before the High Court to strike out Sundra’s civil suit, and has appealed to the Court of Appeal.

The defendant had previously raised the issue of the AG's discretion to commence criminal proceedings in his bid to strike out the suit.

Former AIAC director Sundra Rajoo

On Oct 15 last year, Sundra filed a lawsuit against Thomas, the government, and 11 other defendants, alleging that he suffered false imprisonment and malicious prosecution, among other allegations.

As far back as March 11, 2019, Sundra had gone to the High Court in Kuala Lumpur (via judicial review) to uphold his immunity from arrest and prosecution for alleged offences committed while in office.

Over two weeks later, on March 26, he was again hauled up before the Sessions Court in Kuala Lumpur, where he claimed trial for three charges of CBT involving RM1,011,367.50.

Thomas was at the time the AG under the Pakatan Harapan administration.

With the full legal process completed in the criminal case against Sundra, the only thing left now is his civil suit. - Mkini

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