On Dec 31, 2019, former director of the Asian International Arbitration Centre (AIAC), Prof N Sundra Rajoo, succeeded in his judicial review application against the decision of the Attorney-General’s Chambers (AGC) to charge him with three counts of criminal breach of trust involving over RM1 million belonging to AIAC.
The effect of this decision, until and unless a stay of the High Court’s decision is obtained, means that inter alia the criminal breach of trust case against Rajoo in the Sessions Court has to come to an end.
Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the attorney-general (AG) in exercising his discretion to prefer charges against the appellant is not amenable to judicial review”.
On appeal, the Court of Appeal was of the view that “the issues raised by the appellant might, on further consideration, turn out to be an arguable case in favour of granting the reliefs sought for by the appellant”.
The case was then sent back to the High Court and heard on its merits.
It was reported that the judge, Mariana Yahya, held that the AG’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence was subject to judicial review.
With all due respect to the judge, and without the benefit of perusing her written grounds of judgement, her decision is inconsistent with established case law.
It is trite that the attorney-general’s discretion under Article 145(3) of the Federal Constitution, to “institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Shariah Court, a native court or a court-martial”, is unfettered and is thereby not amenable to judicial review.
See, for example, Johnson Tan Han Seng v Public Prosecutor & Associated Appeals  2 MLJ 66, Karpal Singh & Anor v Public Prosecutor  2 MLJ 544, and more recently in Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal  4 CLJ 561.
Having said that, it is not disputed that Rajoo has a strong case in favour of being covered with immunity under the International Organisation (Privileges and Immunities) Act 1992 (Act 485), for acts done in his official capacity.
However, in light of Article 145(3) of the Federal Constitution and cases decided by the highest court of our land, it is submitted that a judicial review application is not the correct mode of approaching the matter.
The preferred approach would have been for Rajoo’s counsel to have raised a preliminary objection at the Sessions Court on the basis that Rajoo has immunity under Act 485 and, therefore, charges should not and cannot be brought against him.
The preliminary objection would have been heard first and if Rajoo was successful, the court would not be competent to hear the criminal charges.
Having gone down the judicial review route and succeeding at first instance, it is not the end of the matter as the High Court’s decision is left open to easy reversal by the Court of Appeal in the event the AGC decides to file an appeal.
Having said that, Rajoo’s case, if appealed all the way up to the Federal Court, could be a test case challenging the status quo that the AG’s discretion under Article 145(3) is not amenable to judicial review.
Joshua Wu is a reader of FMT.
The views expressed are those of the writer and do not necessarily reflect those of FMT.