I REFER to the Law Student’s letter to the editor dated January 23, 2020 as published in The Malaysian Insight. It has been widely circulated as a news item. The letter contains a number of errors which suggest that the Law Student is selective in his facts and statements in order to present a prejudiced view by providing incomparable examples. 

The Law Student starts with the premise that there is wrongdoing and ends his letter with the same. He is correct as the wrongdoing was by the attorney-general, MACC and the government of Malaysia as ruled by the High Court on December 31, 2019. 

The High Court ruled that the AG’s and MACC’s actions were unlawful and illegal under the Host Country Agreement, International Law (Vienna Convention) enacted into domestic law as Privileges and Immunities Act and the KLRCA Regulations 2011. Therefore, such unlawful actions amenable to judicial review by the High Court. 

The media had reported that on the other hand, the High Court had ruled that such immunity applies only to the former director of AIAC for things done or not done in his official capacity. The charges on the purchase of books which was done in the former director of AIAC’s official capacity were quashed. 

MACC and the attorney-general were also prohibited from further arresting, detaining and charging the former director of AIAC. Any purported waiver by the acting director or any other persons is also quashed by an order of certiorari as being illegal as such persons have no power to issue such waivers.

Earlier, Asian African Legal Consultative Organisation (AALCO) had refused to waive Prof N. Sundra Rajoo’s immunities after being asked by the government of Malaysia. The High Court had ruled that AALCO was the appropriate authority to waive the immunity. 

Despite asking for a waiver of immunities which was denied by AALCO, the attorney-general still proceeded to charge the former director. Why ask for a waiver of immunities if there was no intention to adhere to it?

The facts are that the AALCO had objected to the charges against Sundra on the basis of immunities granted to him under the Host Country Agreement as the charges related to promotion activity of the AIAC through purchase and distribution of his book, Law, Practice and Procedure in Arbitration of 2016 as published by Lexis Nexis. It covered services and arbitral regimes of the AIAC, among others. 

AALCO has maintained that it was aware, participated and supported such promotion activities as it greatly enhanced the position of the AIAC in the international arbitral community. Needless to mention that all royalties received by him from the purchase of the books by the AIAC was donated back to the AIAC. Therefore, the Law Student is wrong to extrapolating the immunities finding by the High Court in the AIAC director’s to the examples he gives. It is misleading especially to an average reader. 

The first example quoted by the Law Student as regards to the Romanian diplomat was clearly out of the scope of official functions when he ran over pedestrians with his car. He therefore had to face trial before the courts of Romania. The public international law in this regard is well-established. Likewise, the prime minister of Malaysia will not be charged for the decision taken by him pursuant to his sovereign function. 

The state always formulates the modality for any action in violation of law. There is a huge difference between the mistake in the functioning of the office and the misuse of power in the office as declared by the Federal Court as regard to public office malfeasance. Immunities granted to the prime ministerial position is also immense. It is present throughout common law jurisdictions when the mistake is committed within the scope of the prime minister’s official capacity of work. The same applies to the rulers (with a special court to deal with such matter). 

Immunity is a concept ingrained within the principles of customary international law and is also inferred from treaties. It protects an official to whom it is granted, from any kind of criminal prosecution over the acts that they did within the scope of their employment. The sole purpose of granting immunities is to ensure that the person taking up the position does their job without any fear of being put in trial for the same in the future. This of course is applicable only as long as the act done by the person is within their official capacity. When that is the case, the official cannot and should not be penalised for merely doing their job.

There are no instances where immunity of a state official has been revoked and there are no established principles of customary international law supporting such revocation. Further, retrospective revocation of immunities essentially tarnishes the very purpose of granting immunities to an official. It destroys the power given to the official and handicaps them of an opportunity to perform their job in the best possible manner. Revoking immunities retrospectively would set a dangerous precedent which would make every state official or diplomat to second guess their performance and make decisions for the running of the government while foreseeing possible persecution by countries and governments around the world. This is obviously not an ideal scenario to work under and would harm the effectiveness of running a government and maintaining cordial international relations. 

The development of AIAC reached a phenomenal level in a short span of time during the tenure of its former director, Sundra. Its dynamism was much admired. The chain of events which started in November 2018 with the MACC raid on AIAC and the arrest of its much-respected former director meant essentially that Malaysia shot itself in both feet to the dismay of many, both domestically and internationally. Sad that the opportunity for Malaysia and the region is lost for now. Singapore is the greatest beneficiary as there are now fewer alternatives to it.

It is clear that AIAC has lost its momentum as seen in the current degradation of AIAC into a lame duck. The Court of Appeal will look at the law as it is and redress the great injustice done to AIAC’s former director, Sundra. It also has to ensure such irresponsible conduct on the part of the authorities is arrested and prevented in the future. Malaysia must respect the rule of law as a country governed by the rule of law. Until then Malaysia is not ready to take its rightful place among the community of nations. 

*G. Ashokapathy reads The Malaysian Insight.