Judicial crisis: Ex-AIAC director’s police report allows MACC to continue probe

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The Asian International Arbitration Centre - Photograph: AIAC

It would be absurd if the ex-director receives diplomatic immunity while others are probed, writes Arun Kasi.

An ex-director of the Asian International Arbitration Centre (AIAC), Sundra Rajoo, has lodged a police report against Justice Hamid Sultan Abdul Abu Backer for making allegedly false claims in his affidavit in the Leap Modulation v PCP Construction case, according to reports on 23 February 2019.

Justice Hamid Sultan’s 14 February affidavit had complained about attempted judicial interference in the Leap Modulation case. The revelation sparked a judicial crisis in Malaysia, prompting the cabinet to agree to the formation of a royal commission of inquiry.

In the Leap Modulation case, Justice Hamid Sultan was part of a three-member panel of judges in the Court of Appeal. He claimed that a panel member came to his chambers to make certain suggestions, taking extraordinary efforts to convince him to remove parts of the judgment that would be detrimental to the AIAC.

At the Federal Court level, Justice Hamid Sultan complained about the manner in which his judgment in Leap Modulation was partly expunged by the Federal Court. This again left the question of any alleged interference by that Court of Appeal panel member to be investigated by a royal commission of inquiry.

Prior to Justice Hamid Sultan’s affidavit, I had complained on 9 February to the Malaysian Anti-Corruption Commission about the manner in which the expungement order was made. I also called upon the Bar Council to intervene in this case with a view to setting aside the expungement order. On 22 February I lodged a motion for the same purpose with the Bar Council.

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From the limited facts available in the media, Sundra Rajoo’s allegation of “false claim” must be more to do with the complaint of interference at the Court of Appeal than with the complaint of expungement by the Federal Court. The former is factual and the latter is legal in nature.

It is not clear how Sundra Rajoo claims falsity of the alleged incident when the Justice Hamid Sultan’s complaint is about what transpired between his fellow panel member in the Court of Appel and himself. This is something for the police to investigate.

Sundra Rajoo was investigated and arrested by the MACC on 20 November 2018. Apparently, this followed an anonymous letter addressed to the MACC that went viral, referred to in the affidavit. I too received this anonymous letter setting out various alleged irregularities. His arrest was almost immediately followed by his resignation as AIAC director.

After his arrest, he claimed immunity as a diplomat and successfully defeated a remand application by the MACC. The Bar Council had asked Putrajaya to waive the immunity, while I had claimed that there was no such immunity for a Malaysian within Malaysia. If such an immunity had existed, it would have been in breach of Article 8 of the Federal Constitution, which guarantees that all are equal before the law.

In my considered view, diplomatic immunity for a Malaysian is only available outside Malaysia – in the same way that a foreign diplomat enjoys similar immunity within Malaysia. To say that a local diplomat enjoys immunity within Malaysia, contrary to the Federal Constitution, would only promote comical jurisprudence.

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Until now, Sundra Rajoo has apparently not been charged. It is not clear if the investigation was proceeded with and if the reason for the absence of any charge relates to his claim of immunity. The MACC should explain this, particularly in the context of the constitutional position that I took.

That said, Sundra Rajoo has now made a police report asking for a thorough probe. He has thus opened himself up for investigation. It would be oxymoronic if he still claims immunity from investigation but others must be investigated. His police report may, with simplicity, now pave the way for the MACC to continue its investigation, that is, if it had been halted.

I will call upon the MACC for an explanation on this matter and its stand.

Arun Kasi, a lawyer, is an arbitrator and construction dispute adjudicator on the panel of the Asian International Arbitration Centre. He is a Fellow of the Chartered Institute of Arbitrators, London.

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