KUCHING: Baru Bian Advocates yesterday filed an application under Rule 137 of the Rules of the Federal Court for a review of the decision of the Federal Court handed down on Dec 20 last year on the Tuai Rumah Sandah case.
In that decision, the Federal Court allowed the appeal of the Director of Forests Sarawak and the State Government, holding that the customary practice of ‘pemakai menoa’ and ‘pulau galau’ have no force of law, thus denying the rights of the respondents over their forest reserves and communal land/territorial domain. Three judges allowed the appeal, and one judge dissented.
“We have put forward 15 grounds to support our application, which was filed at the Federal Court Registry in Kuching today (yesterday),” senior native customary rights (NCR) lawyer Baru Bian said in a press statement yesterday.
According to Baru, one of the grounds was that the judgment of one of the judges in the case Tan Sri Abu Samah Nordin, which supported the decisions of his fellow judges Tan Sri Md Raus Sharif and Tan Sri Ahmad Maarop in granting the State Government’s appeal, was not on the law but on the finding of facts by the trial judge.
“In fact, Justice Abu Samah was in agreement with the dissenting judge on the law, on whether the custom of ‘pemakai menoa’ and ‘pulau galau’ comes within the definition of ‘law’ in Article 160(2) of the Federal Constitution, effectively making the judgment a split 2-2 decision.”
Furthermore, Baru said one of the judges had retired after the hearing without writing his judgment.
“This means that only two out of five judges answered the legal questions laid before the court, thereby making it a minority decision granting the appeal of the State Government. This in itself is a grave injustice to the respondents.”
Baru said another ground of appeal worth noting was that the composition of the panel of judges hearing the appeal was not in keeping with Article 26(4) Chapter 3 of the Report of the Inter Governmental Committee (IGC) 1962 read together with Article VIII of the Malaysia Agreement 1963 that there must be at least one judge with Borneo judicial experience to hear any appeal coming from the Borneo states.
“The fact that this requirement was overlooked caused an injustice to the respondents who are natives from Sarawak, a Borneo state.”
Baru said his legal firm’s application prayed for the alternative order that the case be reheard pursuant to Section 78(2) of the Courts of Judicature Act.
“We are hopeful that the Federal Court will allow us the opportunity for review, as was granted in the Madeli Salleh case, or a rehearing, to avert injustice to the respondents, and consequently all the natives of Sarawak.”