JUST as well the prosecution is appealing a decision by the high court to accept that N. Sundra Rajoo enjoys full immunity from any civil or criminal prosecution in Malaysia.

Because as it stands, this decision renders the former head of the Asian International Arbitration Centre as the most powerful individual in the country. 

Certainly more powerful than a sitting prime minister who can be charged with any offence, from jaywalking to treason.

Certainly more powerful than the attorney-general who can be charged with any offence in the Penal Code and offences covered in other legislation.

Certainly more powerful than the Malay Sultans who have to answer criminal charges in a special court.

Yes, so as it stands Sundra seems untouchable as regards to whatever he did as the head of the centre between 2010 and 2018. He lost his position at the centre after the Pakatan Harapan government brought criminal breach of trust charges against him.

From the onset, Sundra argued that the action by the Attorney-General’s Chambers was flawed because as a high-ranking official of the AIAC, he was protected by full immunity from any arrest, or civil or criminal charges in Malaysia. 

On December 31, high court judge Mariana Yahaya agreed with him, saying that under the International Organisation (Privileges and Immunities) Act 1992, he was immune from any civil and criminal action for acts done while heading the AIAC.

Flowing from that decision, the three CBT charges against him were quashed.

Diplomats enjoy immunity from prosecution in countries where they serve as officials of certain international organisations. This protection is meant for them to carry out their jobs effectively without fear of reprisal from countries they are posted at, and to ensure that organisations are not held hostage by governments in countries where they are based.

But that protection is never meant to encourage or protect wrongdoing. 

For example, in 2009 a Romanian diplomat based in Singapore crashed his Audi into three pedestrians, killing one of them. Several days later, he left for home.

The Singapore government attempted to get the Romanian government to send him back to the city state to face criminal charges.

Singapore was unsuccessful but what the Romanian government did was to prosecute the diplomat in their own courts. He was eventually sentenced to six years for manslaughter.

The tricky part in the Sundra Rajoo case is this: he is a Malaysian and his immunity covers all acts done while he was heading the AIAC – an organisation based in Kuala Lumpur.

In short, the immunity he has been afforded is even better than that enjoyed by a high Commissioner or an ambassador of a foreign nation in Malaysia. 

Those diplomats can claim immunity from prosecution in Malaysia but may still face punitive or administrative action back in their homeland.

Sundra’s all-encompassing immunity against civil and criminal charges is for acts done in his homeland. 

Hopefully, the Court of Appeal will look at this anomaly. Immunity was never meant to reward wrongdoing. – January 23, 2020.

* The writer is a law student who reads The Malaysian Insight.

* 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.