PETALING JAYA: A retired judge has urged the governments of Sabah and Sarawak to convince Putrajaya to amend the Courts of Judicature Act to ensure that at least two judges with experience in matters concerning Borneo hear appeals coming from the states.
Gopal Sri Ram said this should not be a problem as only a simple majority is needed for Parliament to approve amendments to the act.
“Once this is done, there will be at least two judges in the Court of Appeal and on the Federal Court bench to hear and dispose of appeals coming from these states,” he told FMT.
He was responding to the 4-1 majority Federal Court ruling yesterday rejecting a bid by Iban communities from two villages in Sarawak to review an earlier ruling that their native custom has no force of law in the state.
Chief Judge of Malaya Azahar Mohamed and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh were in the majority while Chief Judge of Sabah and Sarawak David Wong Dak Wah dissented.
The applicants complained that the 3-1 majority ruling in December 2016 that originally dismissed their appeals was flawed as none of the judges had Bornean experience. They said this violated Paragraph 26 (4) of the Inter-Governmental Committee (IGC) Report 1962 read with Article 8 of the Malaysia Agreement.
However, Azahar said there was no reason to depart from the Federal Court decision in Keruntum Sdn Bhd vs Director of Forests & Ors, as decided in December 2017.
The apex court held then that Sabah and Sarawak cannot rely on the IGC Malaysia Report if the proposals are not given effect by the Malaysia Agreement, Parliament or the executive.
Justice Zulkefli Ahmad Makinudin who delivered the unanimous decision said it was not necessary to have judges from both territories as members of the Federal Court bench when it hears appeals from these states.
Wong, in his dissenting ruling yesterday, ordered that the appeals be reheard before another panel of judges, one of whom must be a judge with experience in Bornean judicial matters.
“Indigenous peoples in the Borneo states have different customs and cultures alien to the people of Malaya. The differences must be acknowledged to ensure that their interests are protected,” Wong said.
Sri Ram, who retired as a Federal Court judge, said the majority ruling by Azahar was a “black day” for the native people of Sarawak.
“The majority judgment of the Federal Court in the original appeal was also plainly wrong and went against the line of authority in Commonwealth jurisdictions,” he said.
He also suggested that the governments of Sabah and Sarawak amend their land ordinances to entrench the validity of the customary titles.
“In the case of Sarawak, the people could show their displeasure through the ballot box if the current government is insensitive to the plight of the natives,” he said.
On Dec 20, 2016, Raus Sharif, who delivered the majority judgment, said there was no legislation in Sarawak that gave natives the force of law to claim customary rights over virgin forests around their longhouses.
He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders recognised only cultivated land called “temuda” as native customary rights (NCR) land.
“Temuda” refers to land left fallow, on which there are secondary growths.
The judges ruled that the customs of “pemakai menoa” (territorial domains) and “pulau galau” (communal forest reserves) did not fall within the definition of law under Article 160 (2) of the Federal Constitution.
But Zainun Ali, who dissented, said customs and practices were part of the law under the Federal Constitution.
The landowners in the case had sued a timber company and the state government for encroaching into what they said was their territorial domain, and hence their NCR land.
The company, which was issued a timber licence by the government, argued that NCR land should be restricted to the temuda, covering an area of 2,712 hectares.