The Malaysian Insight

FORMER attorney-general Tommy Thomas is seeking to strike out a malicious prosecution and wrongful imprisonment suit filed by a former chief of a regional arbitration centre against him, Attorney-General’s Chambers (AGC) officials and Malaysian Anti-Corruption Commission (MACC) personnel.

Thomas said former Asian International Arbitration Centre (AIAC) chairman Sundra Rajoo’s suit is unprecedented and without basis.

In his application filed today and sighted by The Malaysian Insight, he said if the suit is allowed, it will open the floodgates of legal action against prosecutors.

He added that criminal activity will be left unchecked as prosecutors will be wary of charging suspects in court due to a risk of opening themselves up to subsequent suits.

“If allowed, it will result in a floodgate of civil cases against the government, public prosecutors and deputy public prosecutors, investigating officers, and all government personnel involved in the nation’s criminal justice system.

“That will be contrary to the national interest.”

Sundra was charged on three counts of criminal breach of trust (CBT) amounting to RM1.1 million in March 2019, involving the purchase of a book he authored for AIAC.

He claimed that with the immunity afforded to him as a high-ranking AIAC officer – and, thus, a diplomat – he should not have been imprisoned and prosecuted for acts done in his official capacity.

He filed his suit at the Kuala Lumpur High Court on October 15, naming Thomas and then MACC chief commissioner Mohamad Shukri Abdull as defendants, among other AGC and MACC officials.

Thomas has denied all of Sundra’s allegations, saying that the latter should not enjoy immunity.

“The allegations are meant to harass and intimidate the many defendants, who are public officers merely acting under their duty.”

He said diplomatic immunity does not mean immunity from prosecution.

“Immunity merely means that the host country cannot prosecute (or have civil disputes claiming against) the foreign diplomat. The diplomat is not above the law.

“The plaintiff is not a foreigner. The plaintiff is a Malaysian citizen.”

Sundra also filed for a judicial review of his immunity, which the high court affirmed in December 2019, since Malaysia, as the host country, had signed an agreement with the Asian-African Legal Consultative Organisation (AALCO) in 2013.

Sundra revealed in his statement of claim that the Foreign Ministry had tried to get his immunity waived by writing to AALCO, the parent body of AIAC. But, the move was unsuccessful as the request was rejected by the AALCO secretary-general.

Thomas said he is not aware of any attempt to get Sundra’s immunity waived as he held the position that the plaintiff did not enjoy immunity in the first place.

“There was no question of seeking a waiver. If it occurred, it was done without my knowledge or approval.”

Sundra also said he was forced to resign following intimidation from Thomas, who was AG at the time.

Thomas responded to this, saying that MACC had a solid case against Sundra at the time, and his immediate concern was that AIAC not be left without a director or one who was tainted.

“His arrest was publicised online within hours. An acting director was needed to fill the role on an urgent basis.

“I was most concerned with the standing of AIAC in the national and regional communities of arbitrators.”

AIAC is an international hub for alternative dispute resolution formed by agreement between Malaysia and AALCO in 1978.

It is principally financed by taxpayers’ money from the Consolidated Fund of Malaysia, and its director reports to the Malaysian law minister and AG.

Thomas was AG from June 4, 2018, to February 28, 2020.

Thomas said after Sundra’s resignation, he appointed Vinayak Pradhan as AIAC acting director – a move agreed by then law minister Liew Vui Keong and AALCO secretary-general Kennedy Gastorn.

He also denied claims of a “common design” between himself and Shukri, who is the 11th defendant, with regard to Sundra’s CBT charges.

He decided to bring the charges against the plaintiff in relation to the purchase of the latter’s book using AIAC funds, he added.

“In making that decision, I applied my mind honestly and to the best of my ability. I was influenced only by the law and facts.

“I was satisfied that the prosecution had a strong case for conviction.”

Thomas said, however, the charges were quashed pursuant to a judicial review proceeding brought about by Sundra – whose criminal proceeding never went to trial and, thus, no determination by the court.

“In his judicial review proceeding, the plaintiff sought relief only on the grounds of immunity. There was no complaint on the ‘merits’ of the case of the prosecution or the charges themselves.

“The relief sought by Sundra was a declaration that he has immunity as a former high officer, being the director of AIAC, for acts done within his official capacity. It was a technical argument.” – November 5, 2021.