Pick more judges with ‘Borneon experience’ to hear appeals, say Sabah lawyers

Sabah Law Society president Roger Chin.

KOTA KINABALU: Sabah lawyers want more judges with Bornean judicial experience to sit on Court of Appeal or Federal Court panels when hearing appeals from East Malaysia.

Sabah Law Society (SLS) president Roger Chin said Paragraph 26(4) of the Inter-Governmental Committee Report 1962 should not be misconstrued to mean as having only one judge with such experience on the panels.

The paragraph states that “at least one” of the judges of the Federal Court (then Supreme Court) should be a judge with Bornean judicial experience when hearing appeals arising from Sabah or Sarawak.

Chin said that ideally, the majority of the quorum should be judges with Bornean judicial experience in appeals involving native customary law.

“The SLS takes the stand that the requirement of ‘at least one’ judge with Bornean judicial experience should not be seen merely as a quota requirement.

“There are now many judges in the appellate courts with Bornean judicial experience. The requirement of ‘at least one’ such judge should not be interpreted to mean ‘only one’ such judge.”

Chin was commenting on a native customary rights case involving the Iban communities in Sarawak.

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

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.

The villagers 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, the Federal Court dismissed their application for a review, with the majority decision made by Chief Judge of Malaya Azahar Mohamed and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh.

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

Chin said SLS noted the decision “with some concern”, adding that native laws and issues were as relevant and pressing in Sabah as they were in Sarawak.

“It is interesting to note that it was a 4-1 decision, and that the dissenting vote came from a judge with Bornean experience. The other learned judges on the panel were from Malaya.”

He said judges with such experience must be included on the panels of the appellate courts as they would properly appreciate or take judicial notice of the local conditions, culture and context within which the law operates.

At the same time, he said SLS is not questioning the capability of the judges.

“However, we are of the view that without sufficient Bornean judicial experience, they would not be able to properly appreciate and apply the same, through no fault of theirs,” he said.