NCR cases: Call to reinstate Chief Justice of Sabah and Sarawak in Federal Court panel

Dominique Ng

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KUCHING, Nov 1: Native Customary Rights (NCR) land lawyer Dominique Ng says the Chief Justice of Sarawak and Sabah should be reinstated as one of the five panel members in the Federal Court to determine critical decisions affecting cases related to Sarawak and Sabah, especially on NCR land matters.

He noticed that since 2017, the Chief Justice of Sarawak and Sabah has been excluded from the panel of the Federal Court.

“In the past, the Chief Justice of Sarawak and Sabah was always one of the judges at the Federal Court in cases of critical judgment. From my observation, since 2017, he has been totally omitted or seemed to have been forgotten.

“In that sense, it is a genuine concern because the Federal Court may not have been properly constituted in accordance to the Malaysian Agreement 1963 (MA 1963) which requires one judge to be someone with Bornean experience,” Ng told DayakDaily today.

He said one of the recommendations of the Inter-Governmental Committee Report 1962 states that for any case arising in the two Bornean states, the Federal Court judge panel must consist of one judge who has judiciary experience in the two states.

“According to Malaya, North Borneo, Sarawak, and United Kingdom: Report of Inter-Governmental Committee on the Proposed Federation of Malaysia (pg. 443), paragraph 26 (4), it is stated that ‘The domicile of the Supreme Court should be in Kuala Lumpur’. Normally at least one of the Judges of the Supreme Court should be a Judge with Bornean judicial experience when the Court is hearing a case arising in a Borneo State; and it should normally sit in a Borneo State to hear appeals in cases arising in that state’.”

He stressed that it means at least one of the judges in the Federal Court panel must have Bornean judiciary experience.

“It may not be a Dayak. In the early years, they were white men. But the main concern was that he had judiciary experience in Sarawak or Sabah.

“The main concern is, those judges without Bornean experience will not understand the local situation, for example, on NCR which is a special area in law. If there is one local judge (from Sabah or Sarawak), at least he may share his experience with the rest of the panel,” Ng emphasised.

He further pointed out that in the early years, the Supreme Court (which is known as the Federal Court now) panel consisted of three judges where one must have Bornean experience.

“Now the Federal Court (panel) has expanded from three to five; that means at least two of them must have Bornean experience, according to the initial ratio,” said Ng.

Ng then quoted Article VIII of MA 1963, which states that, “The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February, 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.”

“In other words, any rights of Sarawak and Sabah (such as having a judge of Bornean experience in the Federal Court) not included in the Malaysian Constitution will be guaranteed under Article VIII, which the Federal Court may have failed to fulfil,” said Ng.

He said as far as he knew, for the two landmark cases of Tuai Rumah Sandah and Tuai Rumah Nyutan, the five Federal Court judges were all from Peninsular Malaysia and he was uncertain if any of them had any Bornean experience.

In the Tuai Rumah Sandah case, NCR landowner Sandah Tabau won both in the High Court and the Court of Appeal but lost his case in the Federal Court. It became a precedent case with the natives failing to claim NCR over Pemakai Menoa (territorial domain) and Pulau Galau (communal forest).

In the Tuai Rumah Nyutan case, Nyutan Jami and other native landowners lost their NCR land after the Federal Court ruled that NCR land which is leased as state land, cannot be reverted back to NCR status, which also overturned decisions made by both the High Court and the Court of Appeal. — DayakDaily.