Sundra Rajoo’s report against Hamid opens himself up for investigation


ASIAN International Arbitration Centre (AIAC) ex-director Sundra Rajoo had lodged a police report against Hamid Sultan Abu Backer for allegedly making false claims in his affidavit in relation to Leap Modulation v PCP Construction case.

Hamid, in his affidavit affirmed on February 14, 2019 that broke ground-shaking judicial crisis in Malaysia resulting in the cabinet announcing calls for a Royal Commission of Inquiry (RCI), had complained about attempted judicial interference in the Leap Modulation case. He was a member of the three-judges coram at the Court of Appeal in this case. He said that another coram member came to his chambers to make certain suggestions and spent extraordinary efforts to convince him to remove parts of the judgment that would be detrimental to the AIAC.

At the Federal Court level, he complained about the manner in which his judgement in the Leap Modulation case was partly expunged by the Federal Court and left the question of any interference again by that coram member to be investigated by RCI. Even prior to the affidavit, on February 9, 2019, I had complained to the Malaysian Anti-Corruption Commission (MACC) about the manner in which the expungement order was made and called upon the Bar Council to intervene into this case with a view to setting aside the expungement order. Subsequently, on February 22, 2019, for the same purpose, I lodged a motion with the Bar Council.

From the limited facts available in the media, Sundra’s allegation of “false claim” must have more to do with the complained interference at the Court of Appeal than with the complained expungement at the Federal Court stage, because the former is factual and the latter is legal in nature.

It is not clear how Sundra claims falsity of the alleged incident when the complaint of Hamid was about what transpired between that coram member and himself. This is something for police to investigate.

Sundra was investigated and arrested by MACC on November 20, 2018. Seemingly, this followed an anonymous letter addressed to MACC and others that seemingly went viral, referred to in the affidavit, which I too received, setting out various alleged irregularities. The arrest was quite immediately followed by his resignation as the director of AIAC.

Subsequent to the arrest, he claimed immunity as a diplomat and successfully defeated the remand application by MACC. The Bar Council had asked Putrajaya to waive the immunity, while I had claimed that there was no such immunity for a Malaysian within Malaysia, and which, if it were so, would be in breach of Article 8 of the Federal Constitution that renders all equal before the law – both positions in media.

In my considered view, diplomatic immunity for a Malaysian is when he is outside of Malaysia, the same as when a foreign diplomat is within Malaysia. To say that a local diplomat enjoys immunity within Malaysia, contrary to the Federal Constitution, will only promote a comical jurisprudence.

Until now, seemingly, he has not been charged. It is not clear if the investigation was proceeded with, and if the reason for no-charge relates to, the immunity claim. MACC should explain this, particularly in the context of the constitutional position that I had taken.

Be that as it may, now Sundra has made a police report asking for a thorough probe. Hence, he has opened himself up for investigation and it will be oxymoronic if he still claims immunity so that he should not be investigated but others must be investigated. His police report may, with simplicity, now pave way for MACC to continue investigation, if that was halted.

I will call upon MACC for an explanation on this matter and its stand. – February 25, 2019.

* Arun Kasi is a lawyer, fellow of Chartered Institute of Arbitrators London, and arbitrator and construction dispute adjudicator in the AIAC panel.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.


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