Change the law on Sabah, Sarawak appeal cases, says lawyer

The Federal Court ruled that the native custom of ‘pemakai menoa’ and ‘pulau galau’ has no force of law.

PETALING JAYA: A lawyer for Iban communities who lost a case over native customary rights has urged the Cabinet and Parliament to take action so that appeal cases from Sabah and Sarawak are heard by judges with Bornean judicial experience.

Yogeswaran Subramaniam said action was needed by the legislative and executive branches of government in view of the judiciary’s position.

He told FMT that, in the Iban appeal, the majority decision was that there had been no government action to legally oblige the chief justice to appoint judges with sufficient Bornean judicial experience to hear appeals coming from the territories.

On Wednesday, the Iban communities from two villages in Sarawak failed to obtain a judicial review of a 2016 Federal Court ruling, where the majority decision was that native custom of “pemakai menoa” and “pulau galau” did not have force of law.

Yogeswaran, who represented the communities, said the High Court and the Court of Appeal had earlier ruled in favour of the villagers, only to see the decisions reversed by the Federal Court.

They sought a review of the decision, contending that the composition of the bench violated Paragraph 26(4) of the Inter-Governmental Committee Report 1962 read with Article 8 of the Malaysia Agreement.

However, their application to review the earlier Federal Court ruling was dismissed. The majority decision was made by the Chief Judge of Malaya, Azahar Mohamed, and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh.

Chief Judge Azahar said there was no reason to depart from another Federal Court decision in December 2017 in a timber company’s suit against the state government.

The dissenting opinion was given by the Chief Judge of Sabah and Sarawak, David Wong Dak Wah, who held that the appeals should be reheard before another panel of judges, one of whom must be a judge with experience in Bornean judicial matters.

Two years ago, a five-member bench of the Federal Court held that Sabah and Sarawak cannot rely on the Inter-Governmental Committee Report if the proposals were not given effect by the Malaysia Agreement, Parliament or the executive.

Yogeswaran said he agreed with the view of retired Federal Court judge Gopal Sri Ram that the governments of Sabah and Sarawak must convince Putrajaya to amend the Courts of Judicature Act to ensure the participation of at least two judges with Bornean experience to hear appeals coming from the states.

Sri Ram said only a simple majority is needed for Parliament to approve amendments to the Act.

Yogeswaran, who obtained an ad hoc licence to argue the case, assisted lawyer Baru Bian, the Sarawak opposition leader and now works minister in the Federal government.

At the review proceeding, Yogeswaran appeared together with Joshua Baru and Clarice Chen Mei Chin while the Sarawak government was represented by its state counsel JC Fong and lawyer McWillyn Jiok.