LAWYERS agree with the Malaysian Bar that the special privileges and immunity of Professor Dr Sundra Rajoo be waived so that a thorough investigation can be carried out against his alleged misconduct.

The former Asian International Arbitration Centre (AIAC) director was arrested by the Malaysian Anti-Corruption Commission (MACC) earlier this week on allegations of graft.

The anti-graft agency, however, could not secure a remand order against the prominent lawyer as the court ruled that the MACC had no jurisdiction to detain him as he was a high officer and protected under the International Organisations (Privileges and Immunities) Act 1992 (Act 485).

The Malaysian Bar has urged Putrajaya to waive the immunity and privileges granted to Sundra to enable an investigation into allegations of wrongdoing and to give those implicated a chance to clear their name.

Commenting on that, lawyer Arun Kasi said under Article 8 of the federal constitution, no law may confer a privilege or immunity to a Malaysian in Malaysia as “all are equal before the law”.

He said any claim of privilege or immunity is unconstitutional.

“AIAC is an institution born out of an agreement between the Malaysian government and a foreign institution called Asian-African Legal Consultative Organisation (AALCO).

“The agreement declares that AIAC ‘shall possess judicial personality’ and grants that ‘the centre shall enjoy such privileges and immunities as may be necessary for the purposes of executing its functions, including immunity from judicial process, inviolability of premises and its archives’.

“It is something unusual that an ‘agreement’ attempts to confer a legal entity status and privileges, as pointed out by the dissenting judgment at the Court of Appeal in the case of Leap Modulation v PCP Construction.

“It is not clear as to which provision of these acts, ratifying Vienna Convention and the Convention on the Privileges and Immunities of the UN, were relied on.

“It is also not clear whether Sundra’s claim for privilege or immunity was actually rooted in the agreement or the acts,” said Arun.

He added that as an institution that has been substantially funded with taxpayer money, Sundra must be held accountable.

Sundra was arrested over allegations he used government funds to induce ministers to extend his contract with AIAC, which was due to expire in February.

Lawyer Amir Faliq also concurred with the Malaysian Bar citing a recent case between Rosli Dahalan v Abdul Gani Patail as an example.

“His immunity is applicable but Putrajaya should waive it. Just like in the case of Rosli Dahalan v Abdul Gani Patail. The court concluded that any immunity is not absolute and is subject to scrutiny,” Amir told The Malaysian Insight.

“In Rosli Dahalan’s case, the prosecution was sued and had used the immunity as part of its argument but the court had said that the privileges are not absolute and the prosecutors must first show proof that the action was bona fide.

“So in Prof Sundra Rajoo’s case, the immunity should be waived as it is a far more serious case.”

Another lawyer, Adi Zulkarnain Zulkafli, agreed with both Arun and Amir, saying that one must adhere to the existing laws.

“The Bar is right in calling for his immunity to be waived. Although he has immunity, there are existing laws that say that such a privilege can be renounced.

“We have to respect and uphold the rule of law as pointed out by the Malaysian Bar,” Adi added. – November 25, 2018.