Can a person-about to be charged-tie the Attorney General’s hands?

Can a person prevent the Attorney-General from deciding to prosecute him? The former Director of the Asian International Arbitration Centre did just that. Would the courts agree? Read on …

Mr. Sundra Rajoo was the Director of the Asian International Arbitration Centre (‘AIAC’).

When he returned to Malaysia on 20th November 2018, MACC officials arrested him at KLIA.

The MACC sought a remand order against him at the Putrajaya Magistrates’ Court.

Sundra’s lawyers argued that he was a ‘diplomat’ because he was a ‘High Officer’ under the law. The MACC, they argued, had no jurisdiction to arrest him.

The young Magistrate released him.

For those who complain that our courts are peopled by spineless automatons, imagine the courage of the magistrate!

Sundra promptly resigned as Director of AIAC, so as “to protect AIAC good name”.

He was, however, unhappy about the way he was treated.

So he filed a judicial review application (commonly called a ‘JR’) at the High Court.

What is a Judicial Review Application?

Suppose a public body makes a decision: whether it is the local council, a university, or the AG as in this case – if a person is unhappy about such a decision, he could file a judicial review application at the high court.

A Judicial Review Application is an action by which any person aggrieved by an administrative decision asks the court to intervene, and ‘quash’ the decision.

That was the old law.

It all started in the 17th century, and it has been developing ever since.

Since “the post-World War II era”, judicial review – as a tool to aid the oppressed – spread “tenaciously … across the globe … ”.1Cappelletti, Mauro, Judicial Review in the Contemporary World (1971)

The courts, in this way, checked the exercise of the powers of administrative bodies; and forced them to act within the limits of the law.2Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J).

For at least two decades now, the High Court has wide powers, under its judicial review jurisdiction, to make a range of orders.

So Sundra complained to the High Court.  He used the JR method.  He asked for certain orders from the High Court.

The Low Bar at the High Court
The court will approach a judicial review application in two stages.

It will first decide whether it should give permission for Sundra to continue his action (it is called ‘giving Leave’).

Second, if it did, only then would it  examine the merits of the case.

It is very easy to ‘get leave’ at the High Court.

All Sundra had to do was to show that he had, ‘on the face of it’, an ‘arguable case’.

These ‘leave application’ hearings typically last about two minutes.

The judge does a quick review of the allegations and determines whether he should grant permission.3R v Inland Revenue Commissioners ex. part National Federation of Employed and Small Business Ltd (1982) AC 617, at 643, per Lord Diplock: Privy Council, read with Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Bank Association (1990) 1 CLJ 33

Usually, judges will not refuse permission, even if they are doubtful about the case.

They will say, “Never mind: give the applicant a chance to argue his case. I will decide on its merits later. Let him have his day in court”.

Here, that did not happen.

What did Sundra ask the court to do?

First, Sundra asked that no person or body could make an order that said he was not a ‘High Officer’. If any authority made any such order, Sundra wanted it set aside.

Second, he asked for an order preventing the AG from charging him for any criminal offence, or suing him in a civil court, for anything he had done as AIAC Director.

Third, he wanted an order preventing MACC from arresting him.

Some people thought this was asking for the moon.

If the AG or MACC decided to charge you, how could you stop them?

Sundra’s lawyers replied by saying, that they wished to prove that:-

(1) Sundra had immunity; (2) he had diplomatic status (3) and that he was, therefore, insulated from any criminal charge or civil suit.

What does Article 145(3) of the Federal Constitution, say?

That article says:

“145(3): The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”

The most important phrase in that article is, ‘exercisable at his discretion’.

One view is that the Attorney General has, under the Federal Constitution, almost unstoppable powers.

What the AG’s Chambers argued

Counsel from AG’s Chambers complained that the AG’s discretion to prosecute – or not to prosecute – was the AG’s, and his alone.

They pointed out that the AG’s powers were wide; and that the AG’s hands could not be tied, in this way, through a JR application

Whoever heard of anyone coming to court asking for an order that says,

“Dear AG, here is the Court Order. You can’t charge me”.

The AG’s counsel were not saying that Sundra did – or did not – have immunity.

That was an altogether separate matter, they argued.

There is a time and place when that defence could be brought up:

If the AG was satisfied that there were enough grounds to remand someone for investigations; or had sufficient evidence to charge someone, the AG had a duty, not a privilege, to come to court and charge a suspect.

The accused could, at that time, set up the defence of immunity.

He had to prove that at the criminal court after they had charged him.

No one, the AG said, had a right to come to a civil court and stop the AG (or the MACC) from doing their job: that too even before any charge had been framed against the applicant.

Both the AG and the MACC thought that they had a legitimate duty to investigate a complaint – and if satisfied of the evidence –  charge the accused.

If the courts allowed this, every potential suspect – argued the AG – could ask a civil court for a JR order.

What the High Court Judge ruled

The High Court judge patiently heard all parties. It must have taken longer than two minutes.

Eventually, the judge thought he should not grant permission to Sundra to continue the action. How he came to his decision is important. He started off by citing Article 145(3).

When it came to criminal prosecutions, the judge thought the AG had “unfettered discretion”. So he said that he had “no jurisdiction”.

The judge ruled there was no ‘prima facie arguable case’ against the AG and the MACC. 

He ruled that he “could not stop the AG from prosecuting any person”.  So he dismissed Sundra’s application for permission.

At the Court of Appeal

Sundra next knocked at the massively tall doors of the Court of Appeal.

His lawyers argued that the law had, for decades, set the bar at the High Court very low; and that the High Court Judge should have given Sundra permission to continue – because, they said – Sundra had ‘an arguable case’.

The AG and MACC thought otherwise.

How can – the AG’s side argued –  the law of judicial review protect someone against whom criminal investigations had started?

Why should any ‘alleged immunity’ prevent the AG or the MACC from exercising their legitimate powers?

What the Court of Appeal said

The three judges in the Court of Appeal thought that all that the High Court had to do was to ask himself  whether Sundra’s JR application was frivolous or vexatious.4YAM Tunku Dato’ Seri Nadzaruddin Ibni Tuanku Ja’afar v. Datuk Bandar Kuala Lumpur [2003] 3 MLJ 128

If it was not, the High Court should not have “embarked on substantial issues of merit”.5Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Banks Association, supra

The High Court, they felt, should have given permission for Sundra to continue his suit.

They were reluctant to shut the door on someone even before the case got underway. So they sent the case back to the High Court judge for him to reconsider if Sundra’s case had merits.

And so they allowed Sundra’s appeal.

Chubby Checker’s question

This reminds me of two songs of Chubby Checker, the 1961 hit, ‘Limbo Rock’6https://www.youtube.com/watch?v=5xy8NugHzjE&t=76s, and the 1963 song, ‘How low can you go?’7See https://www.youtube.com/watch?v=QuKBsJoA7jk)

These songs ask: “How low can you go?”

The answer was, in the case of judicial reviews, seems to be: “Pretty low”.

Two nagging questions

In their unanimous judgement, the judges of the Court of Appeal made certain interesting observations.

They dealt with – without quite deciding – two other questions:

(1) were the powers of the AG absolute and unchallengeable; and

(2) did Sundra have immunity from prosecution?

Are the AG’s powers ‘absolute’ and ‘unchallengeable’?

More than 44 years ago, the Malaysian Federal Court had ruled that the Constitution,

“… gives the Attorney-General very wide discretion over the control and direction of all criminal prosecutions”.

Tun Suffian LP observed, in that case that,

“… the courts cannot compel [the A.G] to institute any criminal proceedings which he does not wish to institute, or to go on with criminal proceedings which he has decided to discontinue”.8Long bin Samat & Ors v. Public Prosecutor [1974] 2 MLJ 152, at p. 158: per Suffian LP.

In a subsequent 1977 case, the Federal Court again emphasised that the language of Art. 145(3),

“… is very wide, for it includes the word “discretion”, which means the liberty of deciding as one thinks fit”.9Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66

This meant only one thing: the AG’s exercise of his powers were beyond question.

This led many jurists to question this policy:

“What if the AG abuses this discretion?”

“What then?”

“Could a court stop the AG?”

That ‘AG-do-as-you-like’ position began to wane over time

At the turn of the century, a slew of English cases decided that private individuals could, by using judicial review, challenge any decision of the AG for:

(1) failing to take court proceedings;

(2) for initiating criminal proceedings;

(3) for discontinuing ongoing criminal proceedings – and importantly –

(4) deciding whether to take over or discontinue ongoing private investigations.10R v DPP, Ex Parte Duckensfield [2000] 1 WLR 55 per Laws LJ at pp 67-68; R v. Crown Prosecution Service [2011] EWHC[2011] 2 Cr App. R 12 at paragraph 147

The Court of Appeal also referred to a series of Singaporean cases.

The Singapore cases had ruled that the ‘discretionary acts of the AG’ were ‘not absolute’.

Where the AG had taken prosecutorial decisions in bad faith, or in a manner inconsistent with the ‘equality guaranteed’ in the Constitution, a court could be asked, through a JR Application, to intervene.11Law Society of Singapore v. Tan Guat Neo Phyllis [2008] 2 SLR (R) 49; Chng Suan Tze v. Minister for Home Affairs [1988] 2 SLR (R) 525; Tan Seet Eng v Attorney-General [2016] 1 SLR 779

So the Court of Appeal thought that the answer to the two burning question, (1) whether the AG’s powers were ‘absolute’ – and (2) whether his powers could be the subject of a judicial review application – were, tantalisingly,  ‘left open’.12Paragraph [18] of the Grounds of the Court of Appeal

On a close reading of all these cases, there was no answer to this question: “Can someone like Sundra stop the AG dead in his tracks from even charging Sundra on grounds of immunity?”

The ‘Immunity’ Question

In early April 2010, a Qatari diplomat, Mohammed al-Madadi, was on a flight from Washington, D.C., to Denver.

He went into the lavatory and smoked.

It had predictable results.

The crew thought a fire had started.

He caused a scare.

Confronted by US marshals, he “made a crack about lighting a bomb in his shoes”.13Beam, Christopher, “Can’t Touch this: How far does diplomatic Immunity Go?” The Explainer, (https://slate.com/news-and-politics/2010/04/how-far-does-diplomatic-immunity-go.amp)

Madadi also said something else: that he was a diplomat and could not be prosecuted.

You can imagine how the marshals must have felt!

Diplomats enjoy immunity from prosecution.

But that is not all of it.

Whether a person enjoys diplomatic immunity depends on whether one is, by definition, ‘a diplomat’ and, secondly, what is one’s rank.

Top diplomatic officers have total immunity.

An ambassador could gun down his secretary and get away with it, probably. Often, a country may withdraw such protection. When that happens, the host country is free to initiate criminal proceedings against the diplomat.

Second-level diplomatic officers enjoy ‘functional immunity’.

If a foreign diplomat punches a local policeman while performing his duties, he might enjoy diplomatic protection.

If he assaults a man at a bar while on holiday, he would not be so lucky.

As one’s rank falls, so also diplomatic protection.

An embassy kitchen staff who stabs her boyfriend found in the company of a paramour, may not enjoy any protection at all.

So the question is: Is Sundra Rajoo a diplomat, or a ‘High Officer’ under the law?14International Organisations (Privileges and Immunities) Act 1992 and the Diplomatic Privileges (Vienna Convention) Act 1966 

We shall have to wait on the court to give the answer to that.

What happens now?

Meanwhile, the Attorney-General has gone to the Federal Court. He is asking permission to pose two questions of law.  Shorn of legal language, the AG’s questions are: –

Q-1: If the AG has initiated criminal proceedings against an accused, instead of raising the defence of immunity at the criminal trial, can the accused raise it – separately – in a judicial review application?

Q-2:  If he is allowed to do that, does that not result in duplication of legal proceedings – and if the answer is a “Yes” – should not the JR application be refused, leaving the accused free to challenge the AG at the criminal court?

Perhaps a third question might be helped: –

Q-3: Can a person claiming to have diplomatic immunity – like Sundra here – stop the AG from even starting a criminal proceeding against him?

When – and if – the Federal Court answers these questions, it would throw a great deal of light over a murky part of the law.

 

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