PUTRAJAYA: The Sarawak government said a timber company from the state has no legal or constitutional right to insist on the enforcement of a provision in a 1962 report that at least one Federal Court judge should have “Bornean experience” if a case originates from Sabah or Sarawak.
State legal counsel J C Fong told a five-man Federal Court bench today that Sabah, Sarawak and Malaya did not intend to enforce the provision in the 1962 Malaysia Report of the Inter-Governmental Committee.
The report of the committee paved the way for Sabah and Sarawak to form Malaysia together with the Federation of Malaya and Singapore in 1963.
Singapore was removed from the federation in 1965.
Section 26 (4) of the report says one of the judges of the Supreme Court (now renamed Federal Court) should be a judge with such experience from that territory if a case originates from the two territories.
Fong said the Executive or the Legislature should have acted to enforce the provision but they did not do so over the last 50 years.
“Now, it is not for the court to legislate the provision as submitted by the lawyer for the applicant (Keruntum Sdn Bhd),” he said in his submission before the panel chaired by Justice Zulkefli Ahmad Makinudin.
The company, in March, had applied to set aside a Federal Court ruling that the state government was correct to revoke its 25-year licence to extract timber.
In the application, Keruntum said the judgement was defective as none of the five judges on the bench had “Bornean experience”.
It said this amounted to a coram failure.
Foong said the committees’s recommendation had no legal effect and that such a proposal did not come within the meaning of law under the Federal Constitution.
He said all the five Federal Court judges who dismissed the company’s appeal had Bornean experience as they had, in the past, heard cases which orginiated from both the territories.
Lawyer Gopal Sri Ram, appearing, for Keruntum, said his client was entitled to have at least two judges from the Borneo states to hear and decide the case as the Federal Court now sat with a five-member panel.
He said during the early days of Malaysia, the apex court was made of a three-man bench from Malaya, Singapore and the Borneo states.
“Now at least two should come from Sabah and Sarawak as the bench has been enlarged to five,” he said, adding that such persons should have served as judges in those territories for a reasonable amount of time.
He said the constitution must be read in its entirety, liberally and given a purposive approach.
“The constitution must be read together with other Federal laws and the report, or else the rights of Sabah and Sarawak will be further eroded,” he said,
He said Fong was giving an artificial and literal interpretation to the constitution.
“The rights are submerged and this court has a duty to give effect to it,” he said.
Sri Ram said both states would be under Malayan colonial rule, if at least two judges with Bornean experience did not make up the coram.
“Even the five-man bench now hearing the review application does not posses the experience,” he said.
The court reserved judgment.