SUNDRA RAJOO NADARAJAH v. MENTERI LUAR NEGERI, MALAYSIA & ORS
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
MOHD ZAWAWI SALLEH FCJ
ZALEHA YUSOF FCJ
ZABARIAH MOHD YUSUF FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(F)-38-12-2020(W)]
9 JUNE 2021

A Malaysian former High Officer of the Asian International Arbitration Centre (AIAC), established under the auspices of the Asian-African Legal Consultative Organisation (‘AALCO’), enjoys immunity from any civil or criminal suit or legal process in respect of acts and things that he had done previously in his capacity as the High Officer of the organisation, unless the Host Country Agreement – entered into between Malaysia and the AALCO – or the International Organisation (Privileges and Immunities) Act 1992 provide otherwise. The decision of the Attorney General to prefer the criminal charges against a former High Officer, despite being fully aware of the latter’s legal immunity status, was tainted with illegality and, as such, amenable to judicial review and ought to be quashed

CRIMINAL PROCEDURE: Prosecution – Immunity and privileges – Immunity against prosecution – Attorney General instituted criminal proceedings against former Director of Asian International Arbitration Centre – Whether former Director enjoyed legal immunity – Whether Attorney General could charge or institute proceedings against former Director – Whether 'immunity from suit or from other legal process' in Second Schedule of International Organizations (Privileges and Immunities) Act 1992 includes criminal proceedings – Whether charges valid

ADMINISTRATIVE LAW: Judicial review – Legality of decisions of public authorities – Attorney General's decision to prosecute – Attorney General instituted criminal proceedings against former Director of Asian International Arbitration Centre – Whether former Director enjoyed legal immunity – Whether Attorney General's decision to prosecute former Director tainted with illegality – Whether decision amenable to judicial review – Federal Constitution, art. 145(3) – International Organizations (Privileges and Immunities) Act 1992

CONSTITUTIONAL LAW: Attorney General – Powers and prerogatives – Discretion of Attorney General/Public Prosecutor to institute, conduct or discontinue any proceeding for criminal offence – Challenge against – Attorney General instituted criminal proceedings against former Director of Asian International Arbitration Centre – Whether Attorney General could charge or institute proceedings against former Director – Whether discretion amenable to judicial review – International Organizations (Privileges and Immunities) Act 1992