Sabah, S’wak at mercy of these judges
Published on: Sunday, September 29, 2019
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Despite the ultimate 3:1 determination against the native claimants in the 2016 Federal Court decision, the Federal Court had appeared to be split 2:2 on the legal principles regarding the enforceability of the Iban land customs of pemakai menoa (native territorial domain) and pulau galau (communal virgin forest) in Sarawak. This apparent anomaly, among others, prompted the Sarawak native applicants to file an application, pursuant to rule 137 of the Rules of the Federal Court 1995, to review the 2016 decision.
In arriving at a 4:1 decision not to exercise its review powers last week, the majority of the Federal Court chose to rely on, among other things, the principle of finality of a Federal Court judgment, meaning that the merits of a case or any legal question, no matter how incorrect, should not be reopened once all avenues of appeal have been exhausted, and that the applicants had not demonstrated any exceptional circumstances to merit an intervention into the 2016 decision.
Diametrically opposed to this view, Tan Sri David Wong Dak Wah, Chief Judge of the High Court of Sabah and Sarawak, in the minority held that the 2016 decision was effectively split 2:2 on the legal principles relating to the enforceability of pemakai menoa and pulau galau.
His Lordship observed that “there was in fact no majority and at best a superficial majority with no legal standing” and that “such a circumstance does not create any finality as there was no certainty”. His Lordship also observed that “rendering justice is just as important as the concept of finality of judgment” and ordered, among other things, that the case be reheard to conclusively determine the legal questions posed in the 2016 decision.
While it may be the end of the matter for the native applicants in this case, other native claimants of native customary rights in Sarawak facing the same issue have the option of persuading the Federal Court to revisit the legal question on the enforceability of pemakai menoa and pulau galau in future cases.
Alternatively, natives could seek statutory recognition of their respective pemakai menoa and pulau galau areas or customary equivalents pursuant to the 2018 amendment of the Sarawak Land Code that affords recognition and protection of these rights through a native communal title.
However, the upper statutory limit of any such claim is 1,000ha, which may be substantially less than the actual area customarily and historically occupied, inhabited and used by the native claimant community.
For native communities whose rights over these lands remain uncertain, justice delayed may well constitute justice denied. Accordingly, the Malaysian Bar urges the Sarawak state government to demarcate such areas and to impose a moratorium on granting interests and licences over these areas until the satisfactory resolution of all native customary rights claims in Sarawak.
Of wider significance is the majority decision in the 2019 review on the applicants’ argument that none of the judges who presided over the 2016 decision had sufficient Bornean judicial experience, as envisaged in Article 26(4) of Chapter 3 of the Report of the Inter-Governmental Committee, 1962, read together with Article VIII of the Malaysia Agreement. The majority held that there was nothing in those documents, the Federal Constitution, and the Courts of Judicature Act 1964 that created a legal obligation for the panel hearing appeals from Sabah and Sarawak to include a judge with sufficient Bornean experience.
In dissent, Wong took a broader view of the relevant pre-Constitutional documents and Constitutional and legal provisions, concluding that section 74 of the Courts of Judicature Act imposed a duty upon the Chief Justice to ensure that a judge with sufficient Bornean experience was a panel member inappeals from Sabah and Sarawak. His Lordship also held that a panel without sufficient Bornean experience was “not competent” to hear cases from Borneo states.
The conservative and narrow view of the majority judgment in the 2019 review on the legal necessity of having a judge with sufficient Bornean experience included in a panel hearing appeals from Sabah and Sarawak suggests that the resolution of this issue may not currently lie with the Judiciary but with the Federal legislature.
Towards achieving unity in our ethnically and culturally diverse nation, and respecting the special position held by the natives of Sabah and Sarawak under the Federal Constitution, the Malaysian Bar calls upon the Federal legislature to honour its commitment under the Malaysia Agreement and Article 26(4) of the IGC Report by passing an amendment to the Courts of Judicature Act and providing for the mandatory inclusion of judges having sufficient Bornean experience for appeal cases from Sabah and Sarawak.
This is especially necessary in cases involving laws and customs peculiar to both those jurisdictions. To ignore this action would not only risk injustice in our courts but would be, in the words of Wong, to “go against one of the terms of the formation of the country of Malaysia”.
Abdul Fareed Abdul Gafoor
President
Malaysian Bar
THIS case is not very different from that of Bernard Fung, Nasib Maidan vs Government of Malaysia and Government of Sabah where at the High Court in KK, the judge ruled that the plaintiffs had locus standi to seek legal recourse to protect their rights, being the beneficiaries of MA63.
However, the Court of Appeal by a majority of 2-1 ruled that the plaintiffs did not have locus standi. One of the two judges even asked the plaintiffs to state under which Act of Parliament or which part of the Federal Constitution Borneonisation of the public services in Sabah and Sarawak is even mentioned at all.
The likely explanation for their stand could only be that they were not aware of the Inter-Governmental Committee and the safeguards which had to be obtained by North Borneo (Sabah) and Sarawak in order for the formation of Malaysia to become a reality, as even till today this is not in the school history books or is only touched on briefly.
What was shocking was the judge’s frank remark that he had no inkling of the Malaysia Agreement! Only the dissenting judge in the Court of Appeal decision was from Borneo.
Later at the Federal Court, the panel of five (which has since been increased to nine by former CJ Tan Sri Richard Malanjum) also comprised those of non-Borneo background or origin and they, unanimously, ruled that the plaintiffs from Sabah had no locus standi.
This begs the question as to why Sabah’s founding fathers, in the opinion of some, committed the colossal mistake of being so happy to go along with the Malayan Constitution with some changes and adopting it as the new constitution.
Instead of demanding a brand new constitution since Malaysia is a totally new nation encompassing new territories, cultures, ethnics and peoples and not an expanded Malaya that only had three main ethnicities.
Sadly, Fuad Stephens, as the principal negotiator for Sabahans, did not live long enough to explain this to today’s Sabahans (and Sarawakians) who are curious what went wrong in the face of so many grievances 50 years later.
A similar instance was when the Daily Express was sued by an Umno Minister over a report that he was allegedly served turtle eggs at a dinner in Beluran several years back. While the paper was ready to defend the case and was confident of a positive outcome based on the evidence it had, a problem emerged when the Minister at the outset decided to file his action in the peninsula.
This despite the fact that the alleged incident occurred in Sabah, the witnesses were all Sabahans or residing in Sabah and the newspaper that carried the report was based in Sabah. His contention was that jurisdiction was not an issue since the internet, which also carried the story, was accessible anywhere in the planet.
If jurisdiction of cyberspace was the issue, the judge did not see the logic of PAS President Hadi Awang having to go to London in order to file his action against Sarawak Report, whose Server was based in London, when he could have done it from anywhere in Malaysia.
One of our contentions in trying to have the turtle eggs case heard in Sabah was the MA63 provision that the High Court of Malaya is distinct and separate from the High Court of Sabah and Sarawak (formerly High Court of Borneo) and that cases originating in these two states should not he heard in peninsula courts.
Although the case was settled out of court, it has not shut the door on future such litigation and of Sabahans and Sarawakians being asked to defend themselves in peninsula courts by a plaintiff who is from peninsula, such as in a business deal gone bad. Knowing this would be the ideal way to secure an out-of-court settlement as the financial expenses incurred in defending the case over there would make it impractical for the Sabahan defendant/s.
And along with it loss of revenue for Sabah and Sarawak lawyers as well as the defendants will be forced to engage peninsula lawyers to defend them.
Perhaps, the Law Minister who is from Sabah, can look into tightening the relevant Act in Parliament so that a judge in peninsula would again not interpret the question of jurisdiction in the era of the Internet to the gross disadvantage of Sabahans and Sarawakians. – Ed
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