IBAN communities from two villages in Sarawak have lost their bid to review the Federal Court’s ruling that their native custom has no force of law in Sarawak.

In a 4-1 majority decision by the five-member bench, the court held that there was no basis for a new panel of the Federal Court to review a previous decision.

Chief Judge of Malaya Azahar Mohamed and Federal Court judges Alizatul Khair Osman Khairuddin, Idrus Harun and Mohd Zawawi Salleh agreed, while Chief Judge of Sabah and Sarawak David Wong Dak Wah dissented.

In his 29-page judgment, Justice Azahar said the grounds for review submitted by counsels – representing Tuai Rumah Sandah Tabau and Siew Ak Libau respectively in Kanowit and Sibu – that the Federal Court’s earlier decision had erred in law and had made various obvious errors, was not a valid and legitimate basis to seek a review.

He said it was not for the Federal Court review panel to resolve whether a previous panel in the same case had interpreted or applied the law correctly, for that it was a matter of opinion.

Justice Azahar said the Federal Court had decided the three appeals with a 3-1 majority and was certainly not a 2-2 decision, as claimed by the applicants.

He said even though at the time of delivery of judgment, Justice Abdull Hamid Embong had retired, there was no dispute that the judgment of the Federal Court was delivered by the remaining four judges pursuant to section 78 (1) of the Courts of Judicature Act 1964.

“Therefore, at the time when the judgment of the Federal Court was pronounced, the Federal Court was properly constituted and the judgments delivered cannot constitute a nullity,” he said.

He said, although one of the three judges declined to answer the questions of law, it cannot be denied that for varying reasons the three judges, forming the majority, decided to allow the three appeals by the respondents in the case.

The applicants’ counsel had submitted that there was a “hung” decision as the previous Federal Court panel was split 2-2 in its decision, since one judge had retired and the other judge did not answer the legal questions.

Justice Azahar said the applicants’ claim to question the composition of the panel of judges of the previous Federal Court panel was without any merit, adding that they did not raise objection to the composition of the panel at the time.

The applicants contended that the composition of the previous Federal Court panel that heard the appeals was not made up with a judge of Bornean judicial experience, thereby contravening paragraph 26 (4) of the Inter-Governmental Committee Report (IGC) 1962 read with Article 8 of the Malaysia Agreement.

He said there was no valid reason to depart from the Federal Court decision in Keruntum Sdn Bhd v Director of Forests & Ors case, where the Federal Court held that a litigant cannot enforce the recommendation under paragraph 26 (4) of the IGC that a case originating from the Borneo states should comprise of at least one judge with Bornean judicial experience.

He also said that there must be a finality in litigation.

Justice Wong, in his 49-paged judgment, had allowed the review applications and ordered the appeals to be reheard before another panel of judges, one of which must be a judge cloaked with Borneo judicial experience.

He said there was coram failure as the judges presiding on the Federal Court earlier panel had never served in the High Court of Sabah and Sarawak, thus there was a complete lack of a judge of Bornean judicial experience in that panel.

“Indigenous peoples in the Borneo States have different customs and cultures alien to the people of Malaya. The differences must be acknowledged to ensure that their interests are protected,” said Justice Wong.

On December 20, 2016, the Federal Court, in a 3-1 majority ruled that there was no law in Sarawak that gives the force of law to customary rights claims by the Dayak communities over forest reserves (pulau galau) and communal land or territorial domain (pemakai menoa) as native customary rights (NCR) lands.

The majority decision had allowed the appeals brought by the Sarawak director of Forests, the Superintendent of Lands and Surveys, Sibu Division, the Sarawak Government and Rosebay Enterprise Sdn Bhd, overturning the High Court and Court of Appeal decision, which ruled in favour of the Iban communities. – Bernama, September 11, 2019.