“In my view, this is a correct administrative decision although in a land-related case last year, the lawyer for the Sarawak government was against this idea,” Gopal Sri Ram told FMT.
Sri Ram, who has returned to law practice, said an obvious example where judges from Sabah or Sarawak should feature in a Federal Court bench was in customary land title cases coming from Sarawak.
“Time and again, the Federal Court got it wrong and excluded the chief judge of Sabah and Sarawak from the panel,” he said, adding that judges from West Malaysia did not have enough “Bornean experience”.
He also said there were not enough judges in the Court of Appeal and Federal Court with such experience.
“There should be at least three in the Court of Appeal and two in the Federal Court.”
On Dec 8 last year, a five-man bench ruled that it had no power to give effect to a provision in the 1962 Inter-Governmental Committee Malaysia Report to compel judges from the two states to sit in the Federal Court to hear appeals.
The bench, chaired by Zulkefli Ahmad Makinudin, also said Sabah and Sarawak could not rely on the report if the proposal was not given effect by the Malaysia Agreement 1963, Parliament or the executive.
Zulkefli had said this in dismissing a review application by Sarawak timber company Keruntum Sdn Bhd.
The firm, represented by Sri Ram, wanted the apex court to review its decision in March that the Sarawak government was correct in revoking its 25-year licence to extract timber.
Its grounds for review were that the bench did not include at least one judge who had “Bornean experience”, as suggested in Paragraph 26(4) of the report.
In the application, Keruntum said the judgment was defective as none of the five judges on the bench had such experience, adding that this amounted to a coram failure.
However, Zulkefli said there was no coram failure as the number of judges who heard the case was not less than the statutory minimum under Section 74 of the Courts of Judicature Act 1964.
Others who sat on the bench were Azhar Mohamad, Zaharah Ibrahim, Balia Yusof Wahi and Prasad Sandosham Abraham.
Lawyer JC Fong, who represented the state government, said in his submission that Sabah, Sarawak and Malaya did not intend to enforce the provision in the report which paved the way for both states to form Malaysia together with the Federation of Malaya and Singapore in 1963.
Singapore was removed from the federation in 1965.
Fong said the executive or legislature should have acted to enforce the provision, but had not done so over the last 50 years.
“Now, it is not for the court to legislate the provision,” he said.
Fong also said the committees’s recommendation had no legal effect and that such a proposal did not come within the meaning of law under the Federal Constitution.
Meanwhile, Sri Ram had said his client was entitled to have at least two judges from the Borneo states to hear and decide the case as the Federal Court now sat with a five-member panel.
He said during Malaysia’s early days, the apex court comprised a three-man bench from Malaya, Singapore and the Borneo states.
“Now at least two should come from Sabah and Sarawak as the bench has been enlarged to five,” he said, adding that such individuals should have served as judges in those territories for a reasonable amount of time.
Sri Ram said both states would be considered as under Malayan colonial rule if at least two judges with “Bornean experience” did not make up the coram.
Federal Court: Sabah, Sarawak cannot depend on 1962 report to enforce rights
Govt lawyer: No need for judge with Bornean experience to hear case