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FEDERAL COURT PUTRAJAYA
SUNDRA RAJOO NADARAJAH – Appellant
Versus
MENTERI LUAR NEGERI MALAYSIA & ORS – Respondent
[Civil Appeal No: 01(f)-38-12-2020(W)]
Certainly. Based on the provided legal document, here are the key points:
The court held that statutory immunity under the International Organizations (Privileges and Immunities) Act includes immunity from criminal proceedings, which is essential for safeguarding international legal obligations and organizational integrity (!) .
The relevant legislation, the International Organizations (Privileges and Immunities) Act 1992, confers privileges and immunities on high officers of international organizations, including immunity from suit and legal process in respect of acts performed in their official capacity (!) (!) .
The Act’s provisions, particularly the words "and from other legal process," are interpreted to include criminal proceedings unless explicitly excluded by legislation. The courts emphasized that immunity should be broadly construed in favor of international law compliance (!) (!) .
The purpose of immunity in this context is to protect the independence of international organizations and their officials, including the inviolability of their documents and archives, which is vital for their effective functioning (!) (!) .
The immunity conferred is functional (immunity ratione materiae), applicable to acts done in official capacity, and does not depend on whether the individual is a current or former officer. This immunity extends to criminal proceedings related to acts within the scope of official duties (!) (!) .
The court recognized that international law and domestic legislation should be harmonized, and where ambiguity exists, the interpretation favoring international obligations should be adopted to prevent violations of international law (!) (!) .
The appropriate forum to determine immunity is the court that can properly assess whether acts were performed within the scope of official capacity, rather than the criminal court where charges are laid (!) (!) .
Judicial review of decisions regarding immunity and prosecutorial discretion is permissible in exceptional circumstances, particularly where there is clear illegality or the decision violates the statutory or constitutional framework (!) (!) .
The exercise of prosecutorial discretion by the Attorney General is generally protected from judicial review, but this protection is not absolute. It is subject to a higher standard of review when there is evidence of illegality or procedural irregularity (!) (!) .
The court emphasized that judicial review is appropriate when the decision to prosecute is made in breach of statutory or constitutional provisions, especially when the decision is made without regard to the immunity or legal obligations involved (!) (!) .
The court highlighted that the purpose of immunity is to preserve organizational independence and that criminal proceedings should not undermine this purpose unless there is clear legislative intent to exclude such proceedings (!) (!) .
Overall, the decision underscores the importance of interpreting immunities broadly in line with international law principles, and that such immunities are subject to judicial review only under specific, exceptional circumstances where legality is in question (!) (!) .
Please let me know if you require further analysis or specific legal advice related to this document.
Introduction
[1] The appellant is the former director of the Asian International Arbitration Centre ('AIAC') or as it was formerly known, the Kuala Lumpur Regional Centre for Arbitration or 'KLRCA'. AIAC was established under the auspices of the Asian-African Legal Consultative Organization ('AALCO').
[2] The 1st respondent is the Minister of Foreign Affairs, the 2nd respondent is the Attorney General of Malaysia ('AG'), the 3rd respondent is the Malaysian Anti-Corruption Commission ('MACC') and the 4th respondent is the Government of Malaysia.
[3] This appeal primarily concerned the question of legal immunity. On the one hand, the appellant claimed statutory legal immunity from 'legal processes' which he construed to include criminal proceedings. On the other hand, the respondents, particularly the 2nd respondent acting in the capacity of Public Prosecutor ('PP') claimed immunity from judicial scrutiny against his decision to prosecute the appellant.
[4] Upon hearing parties and upon careful reflection, we were constrained to allow the appeal. We now provide the grounds for our decision.
The Salient Facts
[5] The facts of the appeal, which are largely uncontentious, were adequately set out in the submissions of parties and the documents in the appeal record. We respectfully adopt and restate them as follows, subject to some modifications.
[6] The present appeal arose from three charges preferred against the appellant before the Sessions Court Kuala Lumpur. The charges were in relation to allegations of criminal breach of trust under s 409 of the Penal Code. Of note, the charges expressly alleged that the offences were committed by the appellant in his capacity as 'the Director of AIAC'.
[7] The appellant had authored a treatise entitled 'Law, Practice and Procedure of Arbitration' (2nd edition, LexisNexis, 2016). The alleged offences were in respect of the appellant having had dominion over AIAC funds and having used them to purchase copies of his books for AIAC.
[8] The appellant promptly responded to these allegations in a statement taken from him by the 3rd respondent. The appellant's response was that the copies of his book were purchased with a view to promote and market AIAC, that AIAC benefitted from an author's discount, that the monies were all paid to the international publishing house and that all and any royalties earned by the appellant were channelled back to AIAC. The appellant also claimed that AIAC and AALCO were fully aware of the transactions and had approved them for the purposes mentioned, to wit, promotional and marketing activities on behalf of AIAC.
[9] The appellant claimed that due to certain events which took place after 19 November 2018, he was led to believe that he was to be prosecuted. Fearing that the respondents would not respect his legal immunity status, the appellant filed an application for judicial review to seek, among others, declaratory and prohibitory reliefs to give effect to his legal immunity status and to stop all or any criminal proceedings in that regard.
[10] The hearing for leave to commence judicial review was fixed for hearing on 26 March 2019 and the AG's Chambers were duly notified of this on 7 March 2019. Materially, the AG's Chambers wrote back to the appellant's solicitors vide letter dated 20 March 2019 informing that they were aware that leave was to be heard on 26 March 2019 but that they believed such application was totally irrelevant to any eventual prosecution of the appellant.
[11] A letter dated 22 March 2019 written by His Excellency Professor Dr Kennedy Gastorn (Secretary General of AALCO) to the 1st respondent indicated that the 1st respondent had written to the Secretary General of AALCO seeking a waiver of the appellant's immunity. The letter also indicated that the 2nd respondent had been corresponding with the Secretary General via email on the subject of criminal proceedings against the appellant with the request for an ad hoc waiv
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