Bornean judge must meet appropriate safeguards, not just the quorum – JC Fong

Datuk Seri JC Fong

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KUCHING, Sept 13: The judge with the ‘Bornean judicial experience’ presiding over a case at the Federal Court needs to be one who is well-respected and whose view is so informed that it may influence other panel judges.

State Legal Advisor Dato Sri JC Fong stated that the presence of a judge with the Bornean experience should not just be to meet the quorum or represent the minority, but to effectively argue from the perspective of Sarawak and Sabah and provide the appropriate safeguards.

“My respectful view is this: a ‘judge with Bornean judicial experience’ must also have all the attributes of being able to gain the support or agreement of the majority of the judges on the panel in arriving at any decision especially where it affects litigants from Sarawak or Sabah. I am sure the Inter-Governmental Committee (IGC) never intended to have a ‘judge with Borneo judicial experience’ just to express minority opinions.

“To the champions, including the pseudo ones, having a ‘judge with Bornean judicial experience’ in the Federal Court or Court of Appeal hearing appeals from Sabah and Sarawak, think about how to make the application of the IGC recommendation more effective to safeguard the interests of those who seek justice from our highest Courts,” said Fong in a statement today.

He said this in response to the discussions triggered by the recent outcome of tuai rumah Sandah (TR Sandah) case, where the Federal Court had ruled on Wednesday in favour of the Sarawak government by dismissing the application for review filed by TR Sandah, ending the long legal battle involving two tracts of land totalling nearly 18,000 ha in Kanowit-Ngemah.

Many were disappointed with the outcome of the case, in view of the amendment of the Sarawak Land Code, while there were also those who believed that the presence of judges with Bornean experience would have made a difference as many federal judges were deemed to be unfamiliar with the Sarawak Land Code and native customs.

Fong said the IGC established in 1962 to draw up the safeguards for the Special Interests of Sabah (then North Borneo) and Sarawak upon these states becoming part of the Federation of Malaysia recommended in para 26(4) of its report, that whenever the Federal Court sat to hear appeals originating from the Borneo states, that there should be amongst the judges hearing the appeals, a ‘judge with Bornean judicial experience’.

“Unfortunately, the IGC did not explain or define what it meant by ‘a Judge with Bornean experience’.

“The Federal Court has been called upon to interpret what the IGC members could have meant when they coined the expression ‘a judge with Bornean judicial experience’ in the case of Keruntum Sdn BHd v The Director of Forests & Ors (2018) 4 CU 145 (the Keruntum case”) and more recently, in the TR Sandah Review Application (TR Sandah).

“In the Keruntum case, the five Federal Court Judges unanimously ruled that the said expression ‘must in its plain and ordinary meaning mean a Judge who has the experience of having served as a judge in any of the Borneo States and in his judicial capacity as a judge has heard and disposed of cases arising from the subordinate court, High Court, Court of Appeal or the Federal Court when that particular court sits in the State’.”

Fong said the four judges forming the majority in the TR Sandah Application, agreed with the above ruling of the Federal Court in the Keruntum case.

“The sole dissenting Judge, the Chief Judge of Sabah and Sarawak (CJSS), Tan Sri David Wong, disagreed with the above interpretation of ‘judge with Bornean judicial experience’ in the Keruntum case.

“CJSS ruled that – ‘a Judge is truly said to have Bornean judicial experience when he or she has served in the High Court in Sabah and Sarawak. It to me, meets the appropriate safeguards’.

“CJSS said that in the Keruntum case, Tan Sri Hasan Lah (from Perlis) who served for about two years as a Judicial Commissioner in the Miri High Court, qualified as a ‘judge with Bornean judicial experience’.

“If CJSS’s minority judgment is correct, there are serious ramifications – some of the senior Judges who are born and bred in Sarawak with family connections in the State still intact, would not have ‘Bornean judicial experience’ because they had never served as Judges in the High Court of Sabah and Sarawak.”

Fong pointed out that amongst those are: Dato Abang lskandar Abang Hashim, now a Federal Court Judge who only serves in the High Court of Malaya at Penang, Shah Alam and Kuala Lumpur; and Datuk Hajjah Azizah Nawawi who is now a Court of Appeal Judge. She was formerly attached to the Subordinate Court in Sarawak but her judicial service at a higher level was with the High Court at Shah Alam and Kuala Lumpur.

“Also other Sarawakian Judicial officers serving in Malaya, such as Judicial Commissioner, Awang Agmadajaya Awang Mahmud (now with the High Court in Johor Baru) would not have ‘Bornean judicial experience’.

“All these experienced and distinguished judges may be deprived of opportunity to be called upon to be on the panel of any Federal Court hearing appeals from Sarawak, even though they are born and bred in Sarawak and have strong Sarawak connections simply because they have never served in the High Court in Sabah and Sarawak.

“l am sure it was never the intention of the IGC that the term ‘judge with Bornean judicial experience’ used by them would produce a result that excludes senior, experienced appellate Judges with Sarawak or Sabah connections, from that term simply because they had not served as High Court Judges in the two Borneo States, and also, if these appellate Judges sit in the panel of the Federal Court or Court of Appeal hearing appeals from the two States, the decision of that Court could be declared null and void.

“CJSS said his definition of ‘judge with Bornean judicial experience’ meets ‘the appropriate safeguards’.

However, to Fong, this safeguard, to be meaningful and effective and beneficial to litigants appearing before the appellate courts, depended not only just having a judge with Borneo judicial experience in the Federal Court hearing Sarawak appeals but a judge who was well-respected and whose view may be so informed that it can convince others. — DayakDaily