Federal Court: Sabah, Sarawak cannot depend on 1962 report to enforce rights

Zulkefli-Ahmad-sabah-sarawakPUTRAJAYA: The Federal Court has held that Sabah and Sarawak cannot rely on the 1962 Inter-Governmental Committee (IGC) Malaysia Report if the proposals are not given effect by the Malaysia Agreement, parliament or the Executive.

Justice Zulkefli Ahmad Makinudin also said there was no necessity to have judges from both territories as a member of a Federal Court bench when it heard appeals from these states.

Zulkefli, who delivered the landmark judgment yesterday, said this in dismissing a review application by Sarawak timber company Keruntum Sdn Bhd.

The firm wanted the apex court to review its decision made in March this year that the Sarawak government was correct to revoke its 25-year licence to extract timber.

Its ground for review was that the bench did not constitute at least a judge who had “Bornean experience”, as suggested by paragraph 26(4) of the report.

In the application, Keruntum said the judgement was defective as none of the five judges on the bench had “Bornean experience” and this amounted to a coram failure.

The bench yesterday held that there was no coram failure as the number of judges who had heard the case was not less than the statutory minimum under section 74 of the Courts of Judicature Act, 1964.

Yesterday’s ruling by the highest court in Malaysia means it could be the end of Sabah and Sarawak’s rights under the 1962 Inter-Governmental Committee (IGC) Malaysia Report.

Zulkefli said the term ‘judge with Borneo judicial experience’ used in paragraph 26(4) of the report, means ‘a judge who has exercised judicial functions and heard cases before the subordinate court, High Court, the Court of Appeal and Federal Court when these courts sit in Sarawak or Sabah’.

“This term cannot be interpreted to mean a ‘a judge born or resident in the Borneo States’,” he said.

Zulkefli, who sat with judges Azhar Mohamad, Zaharah Ibrahim, Balia Yusof Wahi and Prasad Sandosham Abraham, said the bench needed to understand what the report meant by the term ‘Bornean judicial experience’.

He said this was because, the report did not define or explain the said term, and so the Federal Court would have to interpret it by following the rules for interpretation of a constitutional document.

The bench also found that the recommendation under paragraph 26(4) of the report was never implemented under the Malaysia Agreement through incorporation in the Federal Constitution or in any laws, such as the Court of Judicature Act 1964 which were passed after Malaysia Day, or by executive orders made pursuant to Article 74 of the Malaysia Act, 1963.

“The courts have no power under Article VIII of the Malaysia Agreement to implement paragraph 26(4) of the report,” he said.

Lawyer JC Fong, who represented the state government, in his submission last April, had said Sabah, Sarawak and Malaya did not intend to enforce the provision in the report which paved the way for both states to form Malaysia together with the Federation of Malaya and Singapore in 1963.

Singapore was removed from the federation in 1965.

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,” he had said in his submission.

Fong 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.

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.

Sri Ram said both states would be considered to be under Malayan colonial rule if at least two judges with Bornean experience did not make up the coram.