The Malaysian Bar views last week's majority decision of the Federal Court in TR Sandah ak Tabau v Director of Forest, Sarawak ("2019 Federal Court review") as a lost chance for the highest Court to exercise its powers of review to correct any obvious error, injustice or ambiguity contained in its 2016 majority grounds of judgment in Director of Forests, Sarawak v TR Sandah ak Tabau  2 MLJ 281 ("2016 Federal Court decision").
Despite the ultimate 3:1 determination against the native claimants in the 2016 Federal Court decision, the Federal Court had appeared to be split 2:2 on the legal principles regarding the enforceability of the Iban land customs of pemakai menoa (native territorial domain) and pulau galau (communal virgin forest) in the State of Sarawak. This apparent anomaly, amongst others, prompted the Sarawak native applicants to file an application pursuant to rule 137 of the Rules of the Federal Court 1995 to review the 2016 Federal Court decision.
In arriving at a 4:1 decision not to exercise its review powers in the 2019 Federal Court review, the majority of the Federal Court chose to rely on, amongst other things, the principle of finality of a Federal Court judgment, meaning that the merits of a case or any legal question, no matter how incorrect, should not be reopened once all avenues of appeal have been exhausted, and that the applicants had not demonstrated any exceptional circumstances to merit an intervention into the 2016 Federal Court decision.
Diametrically opposed to this view, YAA Tan Sri David Wong Dak Wah, Chief Judge of the High Court of Sabah and Sarawak ("YAA Tan Sri David Wong"), in the minority held that the 2016 Federal Court decision was effectively split 2:2 on the legal principles relating to the enforceability of pemakai menoa and pulau galau. In this regard, His Lordship observed that "there was in fact no majority and at best . . . a superficial majority with no legal standing" and that "such a circumstance does not create any finality as there was no certainty". His Lordship also observed that "rendering justice is just as important as the concept of finality of its judgment" and ordered, amongst other things, that the case be reheard on the merits to conclusively determine the legal questions posed in the 2016 Federal Court decision.
While it may be the end of the matter for the native applicants in the instant case, other native claimants of native customary rights in the State of Sarawak facing the same issue have the option of persuading the Federal Court to revisit the legal question on the enforceability of pemakai menoa and pulau galau in another future case. Alternatively, natives could seek statutory recognition of their respective pemakai menoa and pulau galau areas or customary equivalents pursuant to the 2018 amendment of the Sarawak Land Code that affords recognition and protection of these rights through a native communal title. However, the upper statutory limit of any such claim is 1,000 hectares (see section 6A(2) of the Sarawak Land Code), which may be substantially less than the actual area customarily and historically occupied, inhabited, used or enjoyed by the native claimant community.
For native communities whose rights over these lands remain uncertain, justice delayed may well constitute justice denied. Accordingly, the Malaysian Bar urges the Sarawak State Government to demarcate such areas and to impose a moratorium from the further grant of interests and licences over these areas until the satisfactory resolution of all native customary rights claims in Sarawak.
Of wider significance is the majority decision in the 2019 Federal Court review on the applicants' argument that none of the judges who presided over the 2016 Federal Court decision had sufficient Bornean judicial experience as envisaged in Article 26(4) of Chapter 3 of the Report of the Inter–Governmental Committee, 1962 ("IGC Report") read together with Article VIII of the Malaysia Agreement.
The majority held that there was nothing in those documents, the Federal Constitution, and the Courts of Judicature Act 1964 ("CJA 1964") that created a legal obligation for the panel hearing appeals from Sabah and Sarawak to include a judge with sufficient Bornean experience. In dissent, YAA Tan Sri David Wong took a broader view of the relevant pre–constitutional documents and constitutional and legal provisions, concluding that section 74 of the CJA 1964 imposed a duty upon the Chief Justice to ensure that a judge with sufficient Bornean experience was a panel member in appeals from Sabah and Sarawak. His Lordship also held that a panel without sufficient Bornean experience was "not competent" to hear cases from Borneo states.
The conservative and narrow view of the majority judgment in the 2019 Federal Court review (reaffirming the earlier Federal Court decision of Keruntum Sdn Bhd v The Director of Forests  4 CLJ 145) on the legal necessity of having a judge with sufficient Bornean experience included in a panel hearing appeals from Sabah and Sarawak, suggests that the resolution of this issue may not currently lie with the Judiciary but the Federal legislature.
Towards achieving unity in our ethnically and culturally diverse nation and respecting the special position held by the natives of Sabah and Sarawak under the Federal Constitution, the Malaysian Bar calls upon the Federal legislature to honour its commitment under the Malaysia Agreement and Article 26(4) of the IGC Report by passing an amendment to the CJA 1964, providing for the mandatory inclusion of judges having sufficient Bornean experience for appeal cases from Sabah and Sarawak. This is especially necessary in cases involving laws and customs peculiar to both those jurisdictions. To ignore this action would not only risk injustice in our courts but would be, in the words of YAA Tan Sri David Wong, to "go against one of the terms of the formation of the country of Malaysia".
Abdul Fareed Abdul Gafoor
21 September 2019