In a judgment that may raise the eyebrows of the Sabah and Sarawak people, the Federal Court ruled yesterday that judges hearing cases from Sabah and Sarawak need not be from the two states.
A five-member bench of the court ruled that Paragraph 26 (4) of the Inter-governmental Committee Report 1962 (IGC) that cites “a judge with Borneo judicial experience” referred to judicial officers from the subordinate courts, High Court, the Court of Appeal and Federal Court when these courts sit in Sabah and Sarawak.
With this decision, it is not necessary that the Chief Judge of Sabah and Sarawak, in this case Justice Richard Malanjum, should sit in any case in the Federal Court that originates from the two states that joined Malaysia in 1963, as long as the judge or judges on the panel sit either in Kuching or Kota Kinabalu.
This decision, seen as controversial, was made by a panel led by the number two in the judiciary, Court of Appeal president Justice Zulkefli Ahmad Makinudin, which dismissed a review application by Keruntum Sdn Bhd.
In this matter, Keruntum was challenging an apex court decision made last March that dismissed its claims of RM130 million in damages from the Sarawak government.
This was for the wrongful revocation of the company's timber licence by the state. This Keruntum case is one of the longest standing cases, which is close to 30 years.
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Keruntum’s defence, led by former Federal Court judge Gopal Sri Ram (photo), argued that the decision made by the earlier panel, in March 2017, had coram failure as none of the five judges who sat on the bench had “Borneo judicial experience” as stipulated under the IGC, which therefore rendered their judgment null and void.
Gopal argued that since the Federal Court bench was enlarged to five, at least two judges seating in the apex court in the case should have Borneo judicial experience.
However, Sarawak's state counsel JC Foong argued that the IGC proposals are not given effect in the Malaysia Agreement, by Parliament or by the executive.
Newspaper Borneo Post reported that the Justice Zulkefli, along with Federal Court judges Justices Azhar Mohamed, Zaharah Ibrahim, Balia Yusof Wahi and Prasad Sandosham Abraham, ruled there was no coram failure.
This follows the number of judges who heard the original appeal was not less than the statutory minimum under Section 72 of the Courts of Judicature Act 1964.
'A need to understand what IGC meant'
On the issue of Keruntum's claim that its constitutional rights were breached because the panel does not have judges with “Borneo judicial experience” as recommended in paragraph 26 (4) of the IGC, the bench led by Justice Zulkefli ruled there was a need to understand what IGC meant by the term ‘Bornean judicial experience’.
As the IGC report does not define or explain the said term, the Federal Court interpreted that it followed the rules for the interpretation of a constitutional document.
Hence, the bench interpreted the term ‘Bornean judicial experience’ to mean a judge having served in a subordinate court, High Court 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 is a 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’,” it ruled.
To make matters worse, the apex court also ruled yesterday that the recommendation under paragraph 26(4) of IGC Report was never implemented under Article VIII of the Malaysia Agreement through incorporation in the Federal Constitution or in any law, 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.
Hence, the courts have no power under Article VIII of the Malaysia Agreement to implement paragraph 26(4) of the IGC Report, the Borneo Post reported.
This led to Keruntum's application for the review to be set aside and it was ordered to pay RM10,000 in costs.
Yesterday's decision also meant that the reliance of Sabah and Sarawak on the IGC cannot be depended upon as it was never implemented as part of the Malaysia Agreement by being incorporated in the Federal Constitution.
