Asian International Arbitration Centre v One Amerin Residence Sdn Bhd (02(i)-66-12/2023(W))

ONE AMERIN RESIDENCE SDN BHD

2.

RAGAWANG CORPORATION SDN BHD

4.

MENTERI DALAM JABATAN PERDANA MENTERI (UNDANG-UNDANG) … RESPONDENTS (HEARD TOGETHER) IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: 02(i)-66-12/2023(W) BETWEEN ASIAN INTERNATIONAL ARBITRATION CENTRE … APPELLANT 2 AND ONE AMERIN RESIDENCE SDN BHD (COMPANY NO.: 932849-W) … RESPONDENT CORAM ABANG ISKANDAR BIN ABANG HASHIM, PCA ABU BAKAR BIN JAIS, FCJ HANIPAH BINTI FARIKULLAH, FCJ SUPPORTING JUDGEMENT INTRODUCTION [1] I agree with the full reasonings in the main grounds of judgement written by our learned sister Hanipah Farikullah FCJ explaining our unanimous decision in this case. [2] However, I wish only to add a few words on the limited and specific topic regarding the scope and effect of s. 34 (1) of the Construction Industry Payment and Adjudicating Act 2012 (“CIPAA 2012”). This provision arose because the appellant in relying on the same, submitted it could not be sued and made a party to a court proceeding including the present challenge by way of judicial review it is facing, brought by the first respondent. [3] The provision states as follows: 3 No action or suit shall be instituted or maintained in any court against an adjudicator or the KLRCA or its officers for any act or omission done in good faith in the performance of his or its functions under this Act. [4] First, it is appropriate to note there is no dispute that the above abbreviation “KLRCA” – Kuala Lumpur Regional Centre for Arbitration for all intents and purposes in our present case means the appellant. DECISION OF THE HIGH COURT [5] The learned High Court (“HC”) judge found that the above statutory provision protects the appellant in this case. It enjoyed legal immunity or immunity from any court proceedings in view of this provision. [6] Further, the learned HC judge also found that the provision is validly enacted and referred to the Federal Court (“FC”) decision in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another case [2017] 3 MLJ 561 in upholding the same. The passage referred in that case states as follows: [93] The preliminary position is that there is always a strong presumption in favour of the constitutionality of provisions in a statute. This is premised on the principle that Parliament cannot be presumed to intend an unconstitutional action. The burden is upon him who challenges the provision to show that they are unconstitutional (Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566, Ooi Kean Thong & Anor v Public Prosecutor [2006] 3 MLJ 389, Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751; [2015] 8 CLJ 921). The court’s function is merely to test the legality of an action against principles and standards established by the Constitution. Unless it is found that there has been a clear transgression of constitutional principles, the court 4 would refrain from declaring the law as legislated by the Legislature to be invalid. [7] The principle enunciated in the above case is quite trite. The provisions of a statute stand on the basis that the same are constitutional unless it can be clearly proven otherwise. Likewise s.34(1) of CIPAA 2012 as shown earlier must be premised on the understanding that it is constitutional as Parliament could not have intended the same to be enacted unconstitutionally. In this regard, I am of the view that the first respondent before us had not been able to prove any transgression of constitutional principles warranting the said provision to be declared unconstitutional. [8] Another case of the FC that presumed the constitutionality of a statute is Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, intervener) [2004] 2 MLJ 257 where it also approved the principle that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. [9] In respect of this statutory provision too, the first respondent had also contended that the legal immunity provided should not be applicable in judicial review cases. It is undisputed the first repondent had filed a judicial review against the appellant at the HC. Therefore the first respondent submitted that the appellant could not rely on this provision to claim legal immunity from being sued. 5 [10] As indicated in the main grounds of judgement, we do not agree that this provision is not applicable in judicial review cases. There are no reasons to find that the wordings in this provision mean it is not to be applicable when a judicial review application is filed in court. This provision does not state in any manner that no legal immunity will be accorded if it involves a judicial review. In this regard the word “suit” that appears in this statutory provision should be accorded its plain meaning. Literal reading of that word should be preferred as there is no ambiguity in the overall wordings of the provision. The FC in Tebin Mostapa v. Hulba-Danyal Balia & Anor [2020] 7 CLJ 561 provides guidance on this point as it is said as follows: [30] In our opinion, the rules governing statutory interpretation may be summarised as follows. First, in construing a statute, effect must be given to the object and intent of the Legislature in enacting the statute. Accordingly, the duty of the court is limited to interpreting the words used by the Legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself. Therefore, in construing any statute, the court will look at the words in the statute and apply the plain and ordinary meaning of the words in the statute. Second, if, however the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain and clear, they must be given their natural and ordinary meaning. The statute should be construed as a whole and the words used in a section must be given their plain grammatical meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the Legislature and it has no power to fill in the gaps disclosed. Even if the words in a statute 6 may be ambiguous, the power and duty of the court "to travel outside them on a voyage of discovery are strictly limited." Third, the relevant provisions of an enactment must be read in accordance with the legislative purpose and applies especially where the literal meaning is clear and reflects the purposes of the enactment. [Emphasis Added] [11] I also agree with the learned HC judge who had referred to the ‘Oxford Dictionary of Law’ which defined the word “suit” simply as “a court claim”. After all, reference on the meaning of words in dictionaries is a form of extrinsic aid to interpretation of statutes. An illustration of this reference is seen in the FC case of Jabatan Pendaftaran Negara & Ors v Seorang Kanak-Kanak & Ors; Majlis Agama Islam Negeri Johor (Intervener) 2020 2 MLRA 487 where Rohana Yusuf PCA (as she then was) said: [28] We can safely conclude from the above plain dictionary meanings that there is a difference between a personal name and a surname. In the present case MEMK cannot therefore be a personal name and a family name at the same time. It is not a family name or hereditary name or inherited name commonly shared by for example, the wife and all members of the family as defined by the dictionary meaning. [12] Also see the FC case of Tenaga Nasional Bhd v Majlis Daerah Segamat [2022] 3 AMR 1 where Mohd Zawawi Salleh FCJ in delivering judgement, referred to a few dictionaries for the meaning of words in the Local Government Act 1976. [13] In reference to s. 34 (1) of CIPAA 2012 too the learned HC judge was not wrong to conclude the extensive effect of the word “action” in that 7 provision by referring to Halsbury’s Law of England, 4th Edition, Vol 37 para 17 that states as follows: Action means any civil proceedings commenced by writ or in any other manner prescribed by rule of court. It has a wide significance as including any method prescribed by those rules of invoking the court’s jurisdiction for the adjudication or determination of a loss or legal right or claim of any justiciable issue, question or contest arising between two or more persons of affecting the status of one of them. In its natural meaning ‘action’ refers to any proceeding in the nature of a litigation between a plaintiff and a defendant. It includes any civil proceedings in which there is a plaintiff who sues, and a defendant who is sued, in respect of some cause of action, as contrasted with proceedings, such as statutory proceedings which are embraced in the word ‘matter’. DECISION OF THE COURT OF APPEAL [14] Subsequently the Court of Appeal (“COA”) had reversed the decision of the HC. In respect of the issue on legal immunity, the COA relied on the FC case of Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 to rule there is no legal immunity for the appellant against application for judicial review as there must be unmistakenly explicit provision to oust a judicial review from being taken. Therefore the COA came to the conclusion that s.34(1) of CIPAA 2012 should not be applicable for the appellant. [15] The above case is a habeas corpus case where the FC said: From the authorities cited, it seems clear that judicial review, which is essentially a creature of the common law, can be excluded by statutory legislation if the words used are unmistakably explicit. 8 [16] The above became the basis for the COA to find that the first respondent could not be prevented from filing a judicial review application against the appellant despite s.34(1) of CIPAA 2012 as referred earlier. [17] The FC in the above case referred to the COA case of Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah & Anor And Another Appeal [1998] 3 CLJ 85. In respect of this case the FC said: … Gopal Sri Ram JCA, cited with approval the observation of Laws J in R v. Lord Chancellor, ex parte Witham [1997] 2 All ER 779. I draw attention to that part of the observation which states: It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right. But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case, it would provide in terms that in defined circumstances the citizen may not enter the court door. [Emphasis Added] [18] So, what the FC did in finding that judicial review could be prevented by Parliament only if the words of the legislation are mistakenly explicit was to refer to the above passage. However, with respect, must it be concluded that the above passage is authority to find in order to say that judicial review is inapplicable, the words in the legislation (in our case it is 9 s.34(1) of CIPAA 2012) must be explicit? It is my considered view that passage did not at all suggest a judicial review is not applicable only when the words in the legislation are unmistakenly explicit. In our present case, it would be sufficient to expressly prevent a judicial review application by the words already contained in s.34(1) of CIPAA 2012. For the sake of convenience and clarity this statutory provision is again narrated as follows: No action or suit shall be instituted or maintained in any court against an adjudicator or the KLRCA or its officers for any act or omission done in good faith in the performance of his or its functions under this Act. [Emphasis Added] [19] Looking at the above, the Parliamentary Drafters in the Attorney General Chambers were indeed astute to use minimum words to cover numerous possibilities. It should also be clear that those words “no action or suit” certainly will include application for judicial review. It should also be appreciated that “action” or “suit” above are generic terms, thus inclusive of judicial review application, in our present case filed by the first respondent. In this regard, it should also be noted, it is a fundamental principle of statutory interpretation that the clear words of a statute ought to be given effect. As pointed out in the textbook NS Bindra’s on Interpretation of Statutes (10th Edition) at pg 438-439: In constructing a statutory provision, the first and fore-most rule of construction is the literary construction. All that we have to see at the very outset is what that provision says. If the provision is unambiguous, and if from that provision the intent is clear, we need not call into aid the other rules of the construction of statutes. The other rules of construction of statute are called into aid only when the 10 legislative intention is not clear. When the language of a statute is plain and unambiguous, that is to say, admits but of one meaning, there is no occasion for construction. [20] Further, in fact, the FC in the above case referred to another FC case, R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147, where it was held as follows: It is clear law that appellate review jurisdiction is solely a creature of statute while supervisory review jurisdiction is the creature of the common law and is available in the exercise of the courts' inherent power but, I would hasten to add, its extent may be determined not merely by judicial development but also by legislative intervention. [21] Following the above, judicial review could be curtailed by legislative intervention and in our present case that legislative intervention is s.34(1) of CIPAA 2012. The words in this provision as explained would mean judicial review could not be taken against the appellant. [22] The COA also decided that in reference to this statutory provision, there is a need for the appellant to act in good faith in the performance of its functions under this Act. (Please see this provision as shown earlier). Essentially there is a condition according to the COA in this provision for the appellant to act in good faith before it could claim legal immunity and hence this legal immunity is not absolute. [23] On this issue of good faith, I can only subscribe and do no better than to adopt the reasonings as explained in the main judgement by our learned sister, Hanipah Farikullah FCJ. 11 CONCLUSION [24] The appellant could rely on s.34(1) of CIPAA 2012 to protect itself as no action or suit shall be instituted or maintained in any court against it or its officers. The words of this statutory provision are clear and not unambiguous for it to be given effect in favour of the appellant. Dated: 13 February 2025 - signed - (ABU BAKAR BIN JAIS) Federal Court Judge Malaysia Counsels: For the Appellant: Sivabalah Nadarajah, Jamie Goh Moon Hoong & Sachin Niranjan a/l Thavalingam [Messrs Shearn Delamore & Co.] For the First Respondent: Teh Eng Lay, Andy Gan Kok Jin and Vaneesa Thong Chon Yen [Messrs. Cheah Teh & Su] For the Second Respondent: Siew Suet Mey [Messrs. Sanjay Mohan] 12 For the Third Respondent: Rosamirah Insyirah Binti Zamri [Messrs. C.S. Tan Seah & Partners] For the Fourth and Fifth Respondents: SFC Wan Shahida Binti Wan Omar [Attorney General’s Chambers]