Federal Court defines judge with ‘Bornean judicial experience’

PUTRAJAYA: The Federal Court has ruled that the term ‘Judge with Borneo judicial experience’ used in paragraph 26(4) of the Inter- Governmental Committee Report 1962, means ‘a Judge who has exercised judicial functions and heard cases before the Subordinate Court, High Court, the Court of Appeal and Federal Court when these Courts sit in Sarawak or Sabah’. This term could not be interpreted to mean a ‘Judge born or resident in the Borneo States’.

In a unanimous decision read by the President of the Court of Appeal , Tan Sri Zulkef li Makinuddin yesterday, the Federal Cour t rejected an application by Keruntum Sdn Bhd ( Keruntum) to nul l i fy the Judgment given on March 15, 2017, by another panel of Judges which upheld the lower Courts’ decision in rejecting the Company’s claims against the Sarawak State Government for RM130 million in damages, for alleged wrongful revocation of its Timber Licence No.T/0279 on March 10, 1987.

Keruntum argued that the previous panel which dismissed its appeal on March 15, 2017 suffered from ‘coram failure’ in that none of the five Federal Court Judges had ‘ Bornean judicial experience’ and therefore the judgment was ‘null and void’.

In yesterday’s ruling, the Federal Court, comprising also Judges Tan Sri Azhar Mohamad, Tan Sri Zaharah Ibrahim, Tan Sri Bal ia Wahbi and Datuk Sandosham Abraham, held that there was no coram failure as the number of Judges who heard the case was not less than the statutory minimum under section 72 of the Courts of Judicature Act, 1964.

On Keruntum’s allegation that its constitutional rights were violated because the Panel did not have any judges with ‘Borneo judicial experience’ as recommended in paragraph 26(4) of the IGC Report; the Federal Court held that there was a need to understand what IGC meant by the term ‘Bornean judicial experience’.

Because the IGC Report did not define or explain the term, the Federal Court would have to interpret it following rules for interpretation of a constitutional document.

Accordingly, the term ‘ Bornean judicial experience’ must mean a judge having served in the subordinate or High Courts in Sabah and Sarawak and the Court of Appeal and Federal Court when sitting in these two states.

This term cannot be construed to mean a judge born or resident in the two Borneo states, as the IGC’s emphasis is clearly on ‘judicial experience’ and not on the ‘origin, birth or residence of the judge’.

The Federal Court also found that the recommendation under paragraph 26(4) of the IGC Report was never implemented under Article VIII of the Malaysia Agreement through incorporation in the Federal Constitution or in any laws, such as the Court of Judicature Act 1964 passed after Malaysia Day, or by executive orders made pursuant to Article 74 of the Malaysia Act, 1963.

The Courts have no power under Article VIII of the Malaysia Agreement to implement paragraph 26(4) of the IGC Report.

Thus, Keruntum has no constitutional rights to rely on paragraph 26(4) of IGC Report in support of its application to review the judgment of the Federal Court dated March 15, 2017 and have it set aside.

Keruntum was ordered to pay RM10,000 to the state government upon dismissal of its application.

Keruntum was represented by former Federal Court Judge Datuk Seri Gopal Sri Ram and Colin Lau. State Legal Counsel Dato Sri JC Fong and Lonie Pinda appeared for the state government.