Malaysia’s New Attorney General (Idrus Harun): His Top 3 Cases as a Federal Court Judge

[This is a guest post by Kwan Will Sen. He is a litigation partner focusing on commercial litigation and arbitration, and fraud and asset recovery.]

Idrus Harun was a Judge of the apex Court of Malaysia, the Federal Court. He has been appointed as the Attorney General (AG) effective 6 March 2020, replacing Tommy Thomas.

I discuss three significant decisions by Idrus Harun FCJ (as he then was). He wrote the Federal Court’s grounds of judgment for the first two cases (Ireka/ Jack-In Pile and Nautical Supreme), and was part of the minority for the third case (JRI Resources).

Ireka Engineering & Construction Sdn Bhd v PWC Corp Sdn and other appeals [2020] 1 MLJ 311 / Jack-In Pile (M) Sdn Bhd v Bauer (M) Sdn Bhd and another appeal [2020] 1 MLJ 174

These two Federal Court decisions address the same issues. The Federal Court held that the Construction Industry Payment and Adjudication Act 2012 (CIPAA), which came into effect on 15 April 2014, applies prospectively (as opposed to retrospectively). The Malaysian Lawyer featured a case commentary on this decision.

What this means is this:

(i) Parties to a construction contract entered into on/ after 15 April 2014 could avail themselves to adjudication/ the CIPAA regime; and

(ii) Parties to a construction contract entered into before 15 April 2014 could not avail themselves to adjudication/ the CIPAA regime. They were able to do so, prior to these Federal Court decisions.

An issue (and criticism) of the Idrus Harun FCJ’s decisions is the status of ongoing adjudication proceedings/ setting aside/ enforcement proceedings arising involving construction contracts which were entered into before 15 April 2014. Are they now deemed null and void? Or would the Federal Court’s decisions only apply from the date of its pronouncement and ongoing matters are not being affected (a moratorium on those)? The Federal Court did not address these issues.

Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1

The Federal Court recognised that parties to an arbitration could obtain anti-arbitration injunctions. This is despite the Arbitration Act 2005 not containing a specific provision on the Court’s power/ jurisdiction to grant such an injunction. The Malaysian Lawyer wrote a case update on this decision.

Critically, Idrus Harun FCJ was of the view that a non-party to an arbitration could obtain an anti-arbitration injunction to restrain arbitration proceedings (naturally involving parties to the arbitration).

For the anti-arbitration injunctions, the principles of American Cynamid (as adopted locally in Keet Gerald Francis) apply – serious issues to be tried, balance of convenience, whether an award on damages is adequate remedy and any other special factors.

JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd (President of Association of Islamic Banking Institutions Malaysia & Anor, interveners) [2019] 3 MLJ 561

Idrus Harun FCJ was part of the minority in a nine-member bench, together with Chief Justice Richard Malanjum, Chief Judge of Malaya Zaharah Ibrahim, and Chief Judge of Sabah & Sarawak David Wong (CJSS). In particular, he concurred with CJSS’ dissenting judgment in the following terms:

(i) Sections 56 and 57 of the Central Bank Act of Malaysia are unconstitutional. The provisions enable the Syariah Advisory Council (SAC) to essentially usurp the role of the Courts and their judicial power. This violated the doctrine of separation of powers.

(ii) The Courts can refer matters to the SAC, but should not be bound by the opinion of the SAC (n/b: SAC provides opinion on matters relating to syariah/ Islamic financial jurisprudence). The Courts should have the liberty to disagree with the SAC’s opinion and provide its reasons for doing so.

What do these cases indicate/ tell us about Idrus Harun FCJ?

Independent thought and bold in some respects, as demonstrated in the Ireka/ Jack-in Pile decision. Prepared to stick to his guns (as can be seen in the JRI Resources minority decision). Fairly detailed analysis and reasoning, as set out in Ireka/ Jack in-Pile and Nautical Supreme.

What to expect from AG Idrus Harun (formerly the Solicitor General)?

Independence. Fairness. Justice. Experience. Hope.

And hopefully being right on all of the above.

Kwan Will Sen

 

 

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