He said he had applied his mind “honestly and to the best of my ability”, and affirmed that his former deputy public prosecutors had a strong case to convict N Sundra Rajoo.
However, he said Sundra’s CBT case never commenced before the sessions court as he had gone to the High Court to challenge the charges on grounds he was “immune from prosecution” due to his then role as the director of Asian International Arbitration Centre (AIAC).
Sundra had been charged with three counts of misappropriating RM1.1 million belonging to AIAC to buy books.
“On all the occasions that I personally decided to prosecute an individual, I considered the strengths and weaknesses of the prosecution’s case prior to filing charges.
“For me to decide not to prosecute, motivated by self-preservation or fear of personal liability, would be a derogation of my duty.
“That consideration was never present in my decision,” Thomas said in his affidavit to move the High Court to strike out a lawsuit by Sundra against him and 12 others.
Sundra filed the suit against Thomas, the Malaysian Anti-Corruption Commission (MACC) officers and several legal officers last month, alleging “malicious prosecution”.
The Federal Court had ruled that Sundra enjoyed immunity due to his then position as the arbitration centre chief. The CBT charges were struck off.
Sundra would be ‘higher’ than state rulers if he enjoyed immunity
Thomas, who was a lawyer before he was appointed the attorney-general in 2018, said he also considered Sundra’s possible defence, such as the immunity claim, before pressing charges.
“Diplomatic immunity is accorded to diplomatic officers serving in a host country. They are merely immune from the jurisdiction of the country they are posted to.
“These considerations were not present in the instant case. Sundra is not a foreigner but a local,” he said.
He also said Sundra could not be repatriated to face prosecution overseas and was “answerable to the laws of Malaysia, like any person here”.
“For him to claim immunity from prosecution would put him solely on a level above the 30 million citizens.
“He would even be one class above the nine state rulers,” he said, explaining that such a proposition ran afoul of the Federal Constitution’s principles of equality under the law.
It was previously revealed that Wisma Putra had written to the Asian-African Legal Consultative Organisation (AALCO), the parent body of AIAC, to waive Sundra’s immunity but this was rejected by its secretary-general.
“In my opinion, based on the reading of the AALCO agreement and the International Organisations (Privileges and Immunities) Act, the immunity conferred to him does not extend to the three CBT charges as they were related to acts done for his personal benefit – because ‘stealing money’ can never be in the AIAC’s interest,” Thomas said.
He also said since he took the stand that Sundra did not enjoy immunity for his action, there was no question of seeking a waiver.
Thomas said he did not know whether anyone sought permission from AALCO to waive Sundra’s immunity.
“If it had happened, it was done without my knowledge,” he said.
The case continues.