Why Appeal Court judges must have Bornean experience: SLS
Published on: Saturday, January 18, 2020
By: Jo Ann Mool
KUCHING: The requirement of having “at least one” Judge with Bornean judicial experience in hearing cases at the appellate courts should not be seen as merely a “quota requirement”, said Sabah Law Society (SLS).Its President, Roger Chin (pic), said Judges with Bornean judicial experience must be included in the panel of the Court of Appeal and the Federal Court when hearing matters arising from Sabah and Sarawak, as they would be uniquely able to properly appreciate or take judicial notice regarding the local conditions, culture and context within which the law operates.
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“Ideally, when involving native customary law matters peculiar to Sabah and Sarawak, the majority of the quorum should be judges with Bornean judicial experience.
“The law does not operate within a vacuum and the local conditions and context within which laws are enacted and applied are as important as the strict letter of the law.
“SLS is not casting any aspersions on the capability of other Judges of the Court of Appeal and Federal Court to understand and apply the letter of the law, however it is of the view that they, without sufficient Bornean judicial experience, would not be able to properly appreciate and apply the same, through no fault of their own,” he said at the opening of Legal Year 2020, Friday.
SLS noted with some concern the recent decision of the Federal Court dismissing a review application relating to Iban communities and the applicability of their native laws in Sarawak.
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“The application 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.
“Native laws and native issues are as relevant and pressing in Sabah as they are in Sarawak.
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“It is interesting to note that the decision was a 4-1 decision, and that the dissenting decision came from a Judge with Bornean experience, i.e. Chief Justice of Sabah and Sarawak Tan Sri David Wong. Other learned judges on the panel were all from Malaya.
“One of the issues raised in the review application was Paragraph 26(4) of the Inter-Governmental Committee Report 1962 which requires 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,” he said.
He said the Inter-Governmental Committee Report has been given judicial recognition by the Federal Court in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 3 MLJ 72.
Thus, at least a judge with “Bornean judicial experience” should form part of the quorum of the Court of Appeal and the Federal Court when hearing appeals from Sabah and Sarawak. Failure to do so would constitute a breach of the Malaysia Agreement 1963, especially Article VIII.
Chin said there are now many Judges in the Appellate Courts with Bornean judicial experience, adding SLS would state that the requirement of there being ‘at least one’ such Judge should not be interpreted as ‘only one’ such Judge.
“Especially in matters such as the recent decision of the Federal Court which touched on the applicability of native laws to the Iban community, it is vital to have as many such Judges on the panel.
“SLS looks forward to the day when there will be sufficient Judges in the Appellate Courts with Bornean judicial experience, to make it practical for cases dealing with issues unique to Sabah and Sarawak to be heard exclusively by Judges with Bornean judicial experience.
“There has been some discussion also as to the definition of ‘Bornean judicial experience’, namely whether it is sufficient for the Judge in question to have been born and raised 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. Simply being born and raised in Sabah or Sarawak is not sufficient. 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’.
“Regardless of the strict letter of the law, the overriding duty of the Federal Court, and all Courts in Malaysia, must be to do justice. Justice will not be done and will certainly not be seen to be done if the Judges hearing uniquely Bornean issues – such as issues relating to native law and custom – do not themselves have any Bornean judicial experience.
“With greatest of respect, without an understanding of e.g. 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.
“The requirement of having a Judge with ‘Bornean judicial experience’ in the Appellate Courts must be adhered to, and SLS hopes that more High Court Judges presently sitting in Sabah and Sarawak will – after serving for a sufficient period in these States – be swiftly elevated to the Court of Appeal and beyond, in order to meet the ideal of having issues unique and integral to Sabah and Sarawak decided entirely by Judges with Bornean judicial experience,” he said.
Chin also said that SLS will embark on a first of its kind campaign in Malaysia spanning some year and a half throughout Sabah with targeted audience of high school children in all 24 districts in Sabah, to educate school children on the fundamental liberties contained in the Federal Constitution of Malaysia amplified with Malaysia Agreement 1963 (MA63) and Child Rights components.Stay up-to-date by following Daily Express’s Telegram channel.
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