A FRESH call has been made to the appellate courts to have at least one judge with Bornean judicial experience form part of the quorum when hearing appeals from Sabah and Sarawak.

Sabah Law Society (SLS) president Roger Chin, in his address at the opening of the High Courts of Sabah and Sarawak Legal Year, implied former Court of Appeal president Zulkefli Ahmad Makinudin’s 2017 ruling that judges hearing cases from Sabah and Sarawak in the appeals court need not be from the two states was wrong.

Zulkefli had ruled that the recommendation to have a judge with Bornean judicial experience – under paragraph 26(4) of Inter-Governmental Committee (IGC) Report – was never implemented under Article VIII of the Malaysia Agreement 1963 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 MA63.

Chin today said in his address before Chief Justice Tengku Maimun Tuan Mat and Court of Appeal president Rohana Yusuf that the IGC Report had been given judicial recognition by the Federal Court in 2003 in the Pihak Berkuasa Negeri Sabah vs Sugumar Balakrishnan case.

He said as judicial recognition exists, the decision to have at least one judge with Bornean judicial experience to reach a quorum should be reinstated.

He said failure to do so would constitute a breach of Article VIII of the MA63. 

Chin said judges with Bornean judicial experience “must be included” in appellate court panels when hearing matters from Sabah and Sarawak “as they would be uniquely able to properly appreciate or take judicial notice regarding the local conditions, culture and context within which the law operates”.

He said, ideally, the majority of the quorum should be judges with Bornean judicial experience when hearing matters involving native customary law peculiar to Sabah and Sarawak.

“SLS is not casting any aspersions on the capability of other judges of the Court of Appeal and Federal Court to understand and apply the letter of the law.

“However, it is of the view that (judges) without sufficient Bornean judicial experience would not be able to properly appreciate and apply the same, through no fault of their own.”

Chin said since there are now many judges in the appellate courts with Bornean judicial experience, the requirement of there being “at least one” such judge should not be interpreted as “only one” such judge.

He said it was vital to have as many such judges on the panel in matters involving the applicability of native laws to the Iban community.

“SLS looks forward to the day when there will be sufficient judges in the appellate courts with Bornean judicial experience, to make it practical for cases dealing with issues unique to Sabah and Sarawak to be heard exclusively by judges with Bornean judicial experience.”

Chin said regardless of the strict letter of the law, the overriding duty of the Federal Court, as well as all courts in the country, must be to serve justice.

“Justice will not be done and will certainly not be seen to be done if the judges hearing uniquely Bornean issues, such as issues relating to native law and custom, do not themselves have any Bornean judicial experience.

“With greatest of respect, without an understanding of, for example, the history and culture of Sabah and Sarawak, especially that of its natives, a judge – no matter how brilliant and otherwise qualified – will not be able to show empathy and understanding towards parties whose lives are affected by their decisions.”

He hoped more high court judges presently sitting in Sabah and Sarawak will, after serving for a sufficient period in these states, be swiftly elevated to the Court of Appeal and beyond to meet the ideal of having issues “unique and integral to Sabah and Sarawak decided entirely by judges with Bornean judicial experience”. – January 17, 2020.