PUTRAJAYA: The Federal Court will hear if the attorney-general’s prosecutorial power under Article 145(3) of the Federal Constitution is subject to court scrutiny.
The apex court will also determine whether former director of the Asian International Arbitration Centre (AIAC) N Sundra Rajoo, whio had been charged with criminal breach of trust (CBT), enjoyed immunity from prosecution for acts committed while in office.
This follows a decision by a three-member bench chaired by Rohana Yusuf to allow Sundra’s leave to appeal application against a Court of Appeal ruling.
“The application for leave is allowed but the questions need to be modified as some are open-handed,” said Rohana, who sat with Zaleha Yusof and Rhodzariah Bujang in a proceeding conducted through remote hearing.
Sundra’s lawyers, led by Malik Imtiaz Sarwar, K Shanmuga and Abdul Shukor Ahmad, had filed four broad legal questions for the bench.
The apex court will hear the merit of the appeal only if the legal questions raised are novel and of public importance.
The lawyers raised the issue of the attorney-general’s prosecutorial power as the Federal Court had remarked in a judgment last year that a decision by the nation’s top legal adviser could be subject to judicial review.
Earlier today, federal counsel S Narkunavathy submitted that leave ought not be granted as the matter was academic since Sundra’s criminal charge had been struck out by the Sessions Court.
“The question of immunity could be decided in a criminal trial if he is charged again,” she said.
Malik said that although the criminal court had initially set aside the charge, it was resurrected when the Court of Appeal allowed the government’s appeal against the High Court ruling in a judicial review hearing.
“Sundra could face a fresh charge or be prosecuted again under the old charge,” he said.
On June 25, judge Hanipah Farikullah, who chaired a three-member Court of Appeal panel, held that the right forum to determine Sundra’s immunity was the criminal court and not the civil court.
“He can defend himself properly in the proceedings as to whether the alleged act of criminal breach of trust (CBT) was done in his personal or official capacity as director at the time,” she said.
Sundra was previously slapped with three counts of CBT for allegedly misappropriating RM1.1 million in funds from AIAC. However, the High Court then allowed Sundra’s judicial review challenge against the attorney-general’s decision to prosecute him.