KUCHING: Sabah Law Society (SLS) president Roger Chin says judges with Bornean judicial experience must be included when the Court of Appeal and the Federal Court hear matters arising from Sabah and Sarawak.
He said this was because they would be able to properly appreciate or take judicial notice of the local conditions, culture and context within which the law operates.
Otherwise, justice would not be done if judges who had no experience in matters concerning Borneo heard appeals from the states, he said.
“With greatest of respect, without an understanding of the history and culture of Sabah and Sarawak, especially that of its natives, a judge, no matter how brilliant and otherwise qualified, will not be able to show empathy and understanding towards parties whose lives are affected by their decisions,” he said in his speech at the opening of the legal year 2020 here, today.
Chin said a judge could be considered as having the experience in matters concerning Borneo if he had sat as a judge in Borneo for a sufficient period of time and need not necessarily be someone born in Sabah or Sarawak.
“With all due respect to those with differing views, the phrase ‘judicial experience’ is clear, namely that this requires the judge in question to have sat as a judge in Borneo for a sufficient period of time.
“There are judges who have sat in Sabah for many years whom, although they were not born in Sabah, SLS would gladly welcome and accept as having the requisite ‘Bornean judicial experience’,” he said
Chin’s remarks followed the Federal Court’s decision last September which dismissed a review application relating to Iban communities and the applicability of their native laws in Sarawak.
The application, he explained, was to review the Federal Court’s earlier decision where it held that the Iban community’s custom of hunting and foraging in uncultivated jungle for their livelihood had no force of law under Article 160(2) of the Federal Constitution.
It was reported that Chief Judge of Malaya Azahar Mohamed and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh gave the majority decision, while Chief Judge of Sabah and Sarawak David Wong Dak Wah dissented.
Chin pointed out that the native laws and native issues were as relevant and pressing in Sabah as they were in Sarawak.
He said another issue raised in the review application was Paragraph 26(4) of the lnter-Governmental Committee Report 1962, which required 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 out of Sabah or Sarawak.
However, he said the recommendation of having “at least one judge” with Bornean judicial experience must not be seen as merely a “quota requirement”.
In fact, when involving native customary law matters peculiar to Sabah and Sarawak, the majority of the quorum should be judges with Bornean judicial experience, he said.