Uphold Malaysia Agreement
THE Malaysian Bar views last week’s majority decision of the Federal Court in “TR Sandah ak Tabau v Director of Forest, Sarawak” as a lost chance for the highest Court to exercise its powers of review to correct any error, injustice or ambiguity contained in its 2016 majority grounds of judgment in “Director of Forests, Sarawak v TR Sandah ak Tabau [2017] 2 MLJ 281”.
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 in appeals 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”.