AIAC: Judge Hamid Sultan diverged from case facts in judgment

The Asian International Arbitration Centre (AIAC) has defended its move to seek to expunge portions of a judgment concerning it by Court of Appeal judge Hamid Sultan Abu Backer.

The centre also denied Hamid's allegation that it had applied pressure on him over his dissenting judgment in the case of Leap Modulation Sdn Bhd vs PCP Construction Sdn Bhd.

AIAC acting director Vinayak Pradhan (above, left) told Malaysiakinithat Hamid's judgment had diverged from the facts of the case and his criticisms of the centre were not raised by the parties involved in the judgment.

"(Hamid) went on to make adverse comments and allegations against the AIAC and its then director. The AIAC, although not being a party to the High Court and Court of Appeal proceedings, was subject to unwarranted derogation and censure.

“This in respect of matters which were not raised by any of the parties to the proceedings nor the other judges whether orally or in writing," Vinayak said via an e-mail.

He was asked to respond to a shocking affidavit by H.amid (above) last week alleging there was judicial interference in the Leap Modulation vs PCP Construction case after the Federal Court heavily expunged his dissenting judgment made last July.

In his dissenting judgment, Hamid had also said the "monopoly" held by the AIAC on domestic arbitration was against the rule of law.

He had also questioned fees collected and called for the MACC and police to investigate the body.

Vinayak said the judgment was a complete shock to the AIAC which he added was not given an opportunity to defend itself.

"Indeed, there was a manifest breach of the principles of natural justice and the fundamental right of being heard to the detriment of the AIAC," he said.

As such, he said the AIAC filed to intervene in the case and submit full written submissions on its bid to expunge parts of Hamid's judgment.

He noted that neither Leap Modulation or PCP Construction objected to its application to intervene and to expunge Hamid's ruling.

"After hearing submissions from all counsel and with no objections being recorded, the Federal Court agreed with counsel and expunged certain paragraphs of the judgment," he said.

Palace of Justice, Putrajaya

Vinayak said there was nothing improper with these events and dismissed Hamid's allegations that pressure was exerted by the AIAC to obtain the ruling.

"AIAC or its counsel and solicitors did not make any attempt to speak to the judges or 'exert pressure' through 'sympathetic persons' or otherwise.

Indeed, it would be abhorrent to have done so," he said.

In his affidavit, Hamid said his ruling was expunged in a manner "unprecedented in Commonwealth jurisdictions" and claimed the AIAC, through “sympathetic persons” had exerted pressure on him over the dissenting judgment.

He also claimed that certain top judges had assisted the AIAC. Lawyer Arun Kasi had lodged a MACC report over the matter.

The government has also agreed to form a royal commission of inquiry to look into Hamid's allegations.

The AIAC was previously known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA).

It has three mandatory functions, namely international arbitration, domestic arbitration and construction industry payment disputes.

The Leap Modulation vs PCP Construction case stemmed from a payment dispute after the latter did not receive payment for a project. - Mkini