The quality of our judges and their judgments is not a subject one can freely discuss. Under this government, critics of judges can be sent to jail for “scandalising the court”. I will have to tread carefully on what I am about to say lest I be hauled up for contempt.
Judges have to live and understand the dynamics in society to apply the law correctly and do justice.
I know they live in a cocoon of sorts, separating themselves from the rest of society as a way of showing that “they are not easily influenced”. To accentuate their stature, they receive high awards and honours from the king. All good for them.
But I believe a good judge must also understand the lives of ordinary people. They must have a deep cultural understanding of the various communities.
Very often we hear civil court judges say that they have no jurisdiction in a case with some elements of shariah, because they say the shariah court would understand Muslim laws and customs better.
But this deference to culture and customs was not applied when the Ibans descended on the Federal Court to claim that their native customary rights have the force of law.
I doubt many of the judges knew enough about Iban culture and history, but they seemed quite happy to dismiss the review application.
I was shocked to read the statement by judge Azahar Mohamad that “it was not for the Federal Court review panel to resolve whether the earlier panel in the same case had interpreted or applied the law correctly or not, as that was a matter of opinion”.
With respect, the function of judges in the highest court is to do justice. They are not diplomats to be graceful and respectful to the earlier panel if a decision is wrong or unjust.
It would not be so shocking if the judge had defended the earlier decision on merit. But he chose not to. He was content to respect the earlier decision.
The main issue is whether Iban native customs have the force of law in Sarawak. The people expect our top judges to answer. They don’t care if the earlier panel decided on a quorum of 3-2 or 2-2.
They don’t care if the earlier panel was properly constituted or not. They want to know if the highest court in the land will uphold their lifeline, that the case of Nor Nyamal was correctly decided, that the case recognises the native customary rights of pulau galau and pemakai menoa as having the force of law.
But the judges didn’t think that was the business of our top judges to decide. They were happy to respect the opinion of the earlier panel.
The people can forgive our judges when they make one mistake, but not when they make two. The Federal Court has other cases before it to make amends.
The native customary rights of all Malaysians, whether Ibans or Semai or Seletar or other indigenous groups, must be upheld and recognised by our courts. These judges must remember that the politicians who occupy the legislature are not always on the side of the poor natives. They are more comfortable siding with big plantation owners and logging companies. It’s up to our judges to protect the rights of the poor natives and the rights of future generations.
Judges must show empathy and understanding to these natives. It would be helpful if they also understood the history and culture of the people.
Of course, some judges are brave and willing to put justice before everything else. One such judge is David Wong, who wrote the dissenting judgment.
I don’t know Wong personally, but it always warms my heart when I come across judges who make decisions with compassion and understanding of the issues involved.
They are not just “technical experts of the law and the rules of the Federal Court”.
They always seek to answer the larger and more important question: what justice needs to be done in the case before them.
Some say that the Federal Court decision not to uphold the landmark principle in the Nor Nyawai case is academic because the Sarawak Land code has been amended.
The decision of the highest court is never academic. The principles enunciated will always be used by some segment of the public to pursue their own interests.
It is laudable that the Sarawak legislature has amended the Land Code to give limited legal recognition to both pulau galau and pemakai menoa, but it would be more wholesome and complete if our Federal Court took cognisance of these centuries-old principles already endorsed by the legislature.
The Federal Court knows that whatever it says has huge bearings on how written laws are developed and updated.
It must find other opportunities to enunciate legal principles consistent with universal human rights, and give recognition to natives to own customary land.
In rejecting the review application, the judges missed the opportunity to support the Sarawak Land Code which gives such recognition. They must not miss another one.
Zaid Ibrahim is a former law minister.
The views expressed are those of the author and do not necessarily reflect those of FMT.