WHEN former Asian International Arbitration Centre director (AIAC) N. Sundra Rajoo was charged with criminal breach of trust (CBT) in March 2019, he no longer enjoyed any immunity from prosecution.

The reason: his successor at the arbitration centre had waived all of Sundra’s privileges and immunities he enjoyed upon learning that the government was on the cusp of bringing charges related to the alleged fraudulent use of AIAC funds.

This assertion was submitted by government lawyers acting for former attorney-general Tommy Thomas, as well as several officials from the Attorney-General’s Chambers, the Malaysian Anti-Corruption Commission (MACC) and the government of Malaysia during a hearing today to strike out a civil suit brought against them by Sundra for false imprisonment and malicious prosecution.

At the heart of Sundra’s grievance against Thomas, former MACC chief Mohamad Shukri Abdull and others in the civil suit was that, as director of the AIAC, he enjoyed full immunity from prosecution and as such, he should not have been charged for allegedly misusing the centre’s funds, allegations that were contained in a poison pen letter that was widely circulated.

Sundra said, as he was being detained by MACC officers on November 11, 2018, that he had informed the officers that he had immunity from arrest and detention as a senior officer of the AIAC.

In submissions in the striking out application, Sundra’s lawyers said his immunity from criminal prosecution remained even after he completed his tenure as the director.

Sundra also noted that Thomas was aware of his immunity from prosecution and was aware of the government’s unsuccessful attempts to get the parent body of the AIAC to lift the protection accorded to him. But even with this knowledge, the former AG still proceeded to charge Sundra.

In separate proceedings in December 2019, the High Court ruled that Sundra did have immunity from criminal proceedings. The decision was affirmed by the Federal Court.

But in its action to strike out the civil suit today, the former AG and the 11 other defendants appeared to have taken another stab at Sundra’s immunity from criminal prosecution.

They argued that under section 8A of the Privileges and Immunities Act, the immunity belongs to the AIAC, and not to Sundra personally.

As such, the centre was entitled to waive the immunity and the following was what transpired when Vinayak Pradhan, the then acting director of AIAC, wrote to Thomas on February 22, 2019.

“I note from your letter of 14 February that circumstances have changed. You have now prepared charges against Datuk Sundra Rajoo for the fraudulent misappropriation of the AIAC’s funds when he was the director of AIAC with more charges likely to follow… I have the statutory duty to waive the immunities and privileges where the rights and privileges would impede the course of justice… Accordingly, I hereby waive Datuk Sundra Rajoo’s immunities and privileges,” Vinayak had stated in the letter that privileges and immunities are granted in the interest of the international organisation and not for the personal benefit of individuals.

The defendants alleged that this letter showed that Sundra’s immunity had been revoked when he was detained and charged with three counts of CBT. As such, they did not act in bad faith or maliciously against the plaintiff.

Senior federal counsel Shamsul Bolhassan represented the defendants in today’s hearing while Malek Imtiaz acted for Sundra.

Justice Ahmad Bache reserved judgment and will deliver his decision on the striking out application on July 21. – June 20, 2022.