Chief Justice Tengku Maimun Tuan Mat, who chaired a seven-member bench, also said that the prosecutorial power of the attorney-general was not absolute and could be judicially reviewed in appropriate circumstances.
“On the face of it, the appellant (Sundra) was entitled to immunity based on the correspondence between the government and the Asian-African Legal Consultative Organisation (AALCO), the parent body of AIAC,” she said in allowing Sundra’s appeal.
The oral ruling was delivered after the proceedings were conducted through a remote hearing.
Sundra’s lawyers led by Malik Imtiaz Sarwar, K Shanmuga and Abdul Shukor Ahmad, Baljit Sidhu and Surendra Ananth filed four broad legal questions for the bench.
One was if the attorney-general’s prosecutorial power under Article 145(3) of the Federal Constitution was subject to court scrutiny.
The other is to determine whether Sundra, who had been charged with criminal breach of trust (CBT), enjoyed immunity from prosecution for acts committed while in office.
Senior federal counsel Suzana Atan and S Narkunavathy represented the government.
On March 16, 2019, Sundra was charged in the Kuala Lumpur sessions court with three counts of CBT amounting to RM1.1 million, allegedly committed at the AIAC premises on Jalan Sultan Hishamuddin here between Aug 17 and Dec 8 in 2018.
He filed a judicial review application in the High Court the same month.
Judge Mariana Yahya, in December 2019, then quashed Sundra’s CBT charges on the grounds that he had immunity which could not be arbitrarily waived.
Mariana said that removing Sundra’s immunity would be against the 2013 host country agreement signed between Putrajaya and the AALCO.
She also cited the Kuala Lumpur Regional Arbitration Centre (Privilege and Immunity) Regulations, which states that any waiver of immunity could only be done by AALCO.
Mariana said it was revealed that Wisma Putra had written to AALCO to waive Sundra’s immunity, but this was rejected by the secretary-general.
On Jan 22 last year, sessions court judge Azura Alwi struck out the three CBT charges against Sundra as she was bound by Mariana’s ruling.
Following an appeal by the government, judge Hanipah Farikullah who chaired a three-member Court of Appeal panel last year, held that the right forum to determine Sundra’s immunity was the criminal court and not the civil court.