When Immunity Backfires (not an article on AIDS)


"No one is above the law" - a proverbial principle as it is expounded upon in various mediums, such as in the works of Plato and Dicey, or more recently, the highly academical debates concerning the Sokovia Accords.

On a note close to home, when implied with political motivation, this principle has been repeatedly employed by Prime Minister Tun Dr Mahathir Mohamad to justify the detention of several former leaders who now face charges related to abuse of power and corruption. In light of a recent investigation, this article will focus on the relationship between immunity recognised by the law and equality before the law.

The 'recent investigation' in question is the detaining of Prof Dr Sundra Rajoo on the 20th of November 2018. Although the Malaysia Anti-Corruption Commission (MACC) had applied for a seven-day detention, he was released overnight without any condition after Putrajaya magistrate Khir Nizam denied the application and ruled they had no jurisdiction to detain him as he was protected under the International Organisations (Privileges and Immunities) Act 1992 (Act 485).

It has been reported by several sources that an anonymous letter addressed to the MACC, and copied to Attornery-General Tommy Thomas, Inspector-General of Police Fuzi Harun, Foreign Minister Saifuddin Abdullah, Malaysian Bar president George Varughese, and other senior government officials, acted as the catalyst for the investigation.

Common with all administrative or judicial decisions, there were arguments in support and opposing his release. His lawyer, Philip Koh said he was protected under the Diplomatic Privileges (Vienna Convention) Act 1966 while the Malaysian Bar was confident that Putrajaya will waive his special status to enable comprehensive investigations. This debate is centred around the fact that Prof Dr Sundra Rajoo is the immediate past Director of the Asian International Arbitration Centre, thus granting him immunity.

The pertinent law that grants him this immunity is the International Organisations (Privileges and Immunities) Act 1992 (Act 485) which gives legal effect domestically, to the Charter and the Convention on the Privileges and Immunities of the United Nations 1946. In terms of applicability, Section 3A of the Act stipulates that immunity pursuant to the Act will be granted to a specified body or political entity through a Gazette.

By virtue of the Kuala Lumpur Regional Centre for Arbitration (Privileges and Immunities) Regulations 1996, as amended by the Kuala Lumpur Regional Centre for Arbitration (Privileges and Immunities) (Amendment) Regulations 2011, KLRCA has been declared as an international organisation and the Director of KLRCA is conferred the privileges and immunities as specified in the Privileges and Immunities Act.

The immunity granted to the Director is absolute in nature, and it has been recognised by the Malaysian Courts, for instance in the High Court case of Infineon Technologies (M) Sdn Bhd v Orisoft Technology Sdn Bhd (previously known as Orisoft Technology Bhd) and another [2011] 7 MLJ 539, where KLRCA and its Director were successful in their interlocutory application to strike out the claim against them on the ground of absolute immunity pursuant to the Privileges and Immunities Act.

This status is absolute in the sense that it can only be stripped of a person through the withdrawal of the very Gazette that had granted the body immunity in the first place. Such withdrawal can only take place upon an order from the Yang di-Pertuan Agong as provided for in Section 4 of the International Organisations (Privileges and Immunities) Act 1992 (Act 485). The rationale behind granting such immunity is to ensure the smooth functioning of the institution and to allow the Director to effectively make decisions for the betterment of the institution. When this rationale is balanced with allegations of corruption or other serious crimes, it does not seem appropriate to continue upholding the immunity status.

Taking into account foreign jurisdiction such as the United States, cases such as Austern v Chicago Board Options Exchange Inc [1990] USCA2 213 have allowed a blanket immunity for all administrative and judicial decisions of the arbitration institution. However, the immunity does come with exceptions such as when the conduct in question involves a crime element, as written by Roberts in Judicial Review of "Misconduct" Cases (1973).

It is on this note, that the Malaysian Legal System should adopt an approach that does not allow absolute immunity but sufficient immunity, to strike a balance between keeping in check the decisions of the Director while providing sufficient decision-making space. The Malaysian Bar is in favour of an approach whereby the immunity should be waived in certain circumstances. In my opinion, this approach can be tedious in nature as a waiver needs to be obtained for each investigation and the time taken to approve such a waiver of immunity may be long. Instead, the law can provide that investigating bodies such as the MACC, AG Chambers and etc., are not bound by the immunity status. In a nutshell, to ensure better investigations, these bodies should be 'immune' from immunity.

Such amendments to the law are vital especially when taking into account Article 8 of the Malaysian Federal Constitution. Article 8 states that "All persons are equal before the law and entitled to the equal protection of the law… Except as expressly authorized by this Constitution…". When considering the wordings of Article 8, the principle of absolute immunity is not compatible with the Federal Constitution, particularly so when it comes to walking away from criminal investigations.

From a different perspective, when 'Immunity Backfires', its effects are not only felt by the general public, but the suspected individual himself. Sharing the sentiments of the Malaysian Bar President George Varughese, by hindering the investigations, Prof Dr Sundra Rajoo is not given a chance to establish his innocence. The best that can be done and in fact was done in the present case, is for the suspected individual to promise full cooperation in the investigations. By amending the law, besides preserving public interest by ensuring proper investigations are conducted, the suspected individual also has the opportunity to prove his innocence.

In conclusion, a closer examination is needed on the laws concerning immunity and in providing the benefit of the doubt, Prof Dr Sundra Rajoo's legacy during his nine-year tenure as the Director of AIAC should be appreciated whilst wishing the heartiest of congratulations to Vinayak Pradhan for his appointment as the acting Director of AIAC.