I can’t be sued: Tommy
Published on: Friday, August 05, 2022
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Former attorney-general Tommy Thomas has been named as a defendant in a suit by former Asian International Arbitration Centre (AIAC) director N Sundra Rajoo. (Bernama pic)
Kuala Lumpur: Former attorney-general (AG) Tommy Thomas  (pic) said he cannot be held liable for misfeasance in public office and malicious prosecution as he had acted as public prosecutor against a former Asian International Arbitration Centre (AIAC) director.

Thomas, who held the office of AG between June 2018 and February 2020, said that in his capacity as public prosecutor, he had the discretion under Article 145 (3) of the Federal Constitution and Section 376 of the Criminal Procedure Code to prefer the three charges brought against N Sundra Rajoo.

“The first defendant (Thomas) is immune from and cannot be made liable for the plaintiff’s claims in these (civil) proceedings by virtue of the non-justiciability of the defendant’s discretion to prefer the charges,” Thomas said in his defence which was filed in court.

Sundra filed the suit last October for false imprisonment, breach of constitutional rights and conspiracy to injure through unlawful means.

Also named as plaintiffs were former Malaysian Anti-Corruption Commission (MACC) chief commissioner Mohamad Shukri Abdull, several MACC officers and deputy public prosecutors.

Thomas said even if the tort of malicious prosecution applied to Sundra, which he denied, the criminal proceedings did not “terminate in (Sundra’s) favour as the charges were quashed at the outset on the basis of immunity.”

“The plaintiff was never acquitted and no judicial determination was made of the plaintiff’s guilt or innocence. Hence the tort is not sustainable in these circumstances,” he said in asking the court to dismiss the suit with costs.

Sundra said he should not have faced prosecution as he enjoyed immunity for acts done as AIAC director, a contention which the Federal Court accepted in judicial review proceedings heard last year.

The apex court said Sundra’s functional immunity included immunity from criminal proceedings and that he had acted to safeguard the interests of AIAC and its parent body, the Asian-African Legal Consultative Organisation (AALCO).

Sundra was charged in the Kuala Lumpur sessions court on March 16, 2019, with three counts of criminal breach of trust (CBT) amounting to RM1.1 million, allegedly committed at AIAC’s premises in Jalan Sultan Hishamuddin here, between Aug 17 and Dec 8, 2018.

However, Thomas in his defence maintained that the immunity alleged by Sundra violated Article 8 of the constitution.

Thomas also claimed that Sundra, who was the centre’s director since 2010, had included the immunity clause in 2013 which was self-serving, dishonest and constituted fraud.

He said all the previous Malaysian directors of AIAC discharged their duties without immunity from prosecution under Malaysian law. Thomas also said the Attorney-General Chambers and MACC officers were lawfully carrying out their duties and had not taken instructions from him.

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