IN recent days, owing to the decision in the Application for Review by Tuai Rumah Sandah Tabau by the Federal Court, much has been discussed publicly about who is or can qualify to be a “judge of Bornean judicial experience”. In view of the great public interest in this matter, I feel compelled to share my thoughts on this interesting and important issue.
The Inter-Governmental Committee (IGC) established in 1962 to draw up the safeguards for the Special Interests of Sabah (then North Borneo) and Sarawak upon these states becoming part of the new Federation of Malaysia, recommended, at Para 26(4) of its report, that whenever the Federal Court sits to hear appeals originating from the Borneo States, normally there should be amongst the judges hearing the appeals a “judge with Bornean judicial experience”.
Unfortunately, the IGC did not explain or define what it meant by “a judge with Bornean judicial experience”. The Federal Court had been called upon to interpret what the IGC members could have meant when they coined the expression “a judge with Bornean judicial experience” in the case of Keruntum Sdn BHd v The Director of Forests & Ors (2018) 4 CLJ 145 (‘the Keruntum case’) and more recently, in the TR Sandah Review Application (‘TR Sandah’).
In the Keruntum case, the five Federal Court judges unanimously ruled that the said expression “must in its plain and ordinary meaning mean a judge who has the experience of having served as a judge in any of the Borneo States and in his judicial capacity as a judge has heard and disposed of cases arising from the subordinate court, High Court, Court of Appeal, or the Federal Court when that particular court sits in the State”.
The four judges forming the majority in the TR Sandah Application, agreed with the above ruling of the Federal Court in the Keruntum case.
The sole dissenting judge, the Chief Judge of Sabah and Sarawak (‘CJSS’) Tan Sri David Wong disagreed with the above interpretation of “judge with Bornean judicial experience” in the Keruntum case.
CJSS ruled that (quote) “a judge is truly said to have Bornean judicial experience when he or she has served in the High Court in Sabah and Sarawak. It to me, meets the appropriate safeguards”.
CJSS said that in the Keruntum case, Tan Sri Hasan Lah (from Perlis), who served for about two years as a Judicial Commissioner in the Miri High Court, qualified as a “judge with Bornean judicial experience”.
If CJSS’ minority Judgment is correct, there are serious ramifications: some of the senior judges who are born and bred in Sarawak with family connections in the State still intact, would not have “Bornean judicial experience” because they had never served as judges in the High Court of Sabah and Sarawak.
Amongst them are Datuk Abang Iskandar Abang Hashim, now a Federal Court Judge who only served in the High Court of Malaya at Penang, Shah Alam, and Kuala Lumpur; and Datuk Azizah Nawawi, who is now a Court of Appeal Judge. She was formerly attached to the Subordinate Court in Sarawak but her judicial service at a higher level was with the High Court at Shah Alam and Kuala Lumpur. Also other Sarawakian Judicial officers serving in Malaya, such as Judicial Commissioner Awang Armadajaya Awang Mahmud (now with the High Court in Johor Bahru) would not have “Bornean judicial experience”. All these experienced and distinguished judges may be deprived of the opportunity to be called upon to be on the panel of any Federal Court hearing appeals from Sarawak, even though they are born and bred in Sarawak and have strong Sarawak connections simply because they have never served in the High Court in Sabah and Sarawak.
I am sure it was never the intention of the IGC that the term “judge with Bornean judicial experience” used by them would produce a result that excludes senior, experienced appellate judges with Sarawak or Sabah connections, from that term simply because they had not served as High Court Judges in the two Borneo States, and also, if these appellate judges sit in the panel of the Federal Court or Court of Appeal hearing appeals from the two States, the decision of that Court could be declared null and void.
CJSS said his definition of “judge with Bornean judicial experience” meets “the appropriate safeguards”. This safeguard, to be meaningful and effective and beneficial to litigants appearing before the appellate courts, depends not only just having a judge with Borneo judicial experience in the Federal Court hearing Sarawak appeals. That judge will always be in the minority as there would only be one such judge in a panel of three, five, seven, or nine other judges.
In the circumstances, for that minority “judge with Bornean judicial experience” to be able to “meet the appropriate safeguards”, he must be able to convince the majority by earning their confidence and respect that his judicial reasonings, application, and interpretation of law and analysis of the facts and evidence of the case are sound, impartial, and meet the standards of a decision by the highest court in the nation.
With respect, I am unable to comprehend as to how any judge who is not able to convince his brother or sister judges on the panel that the judgment written by him ought to be the Judgment of the Court, is able to provide “the appropriate safeguards”.
My respectful view is this, a “judge with Bornean judicial experience” must also have all the attributes of being able to gain the support or agreement of the majority of the judges on the panel in arriving at any decision especially where it affects litigants from Sarawak or Sabah. I am sure the IGC never intended to have a “judge with Bornean judicial experience” just to express minority opinions.
To the champions, including the pseudo ones, of having a “judge with Bornean judicial experience” in the Federal Court or Court of Appeal hearing appeals from Sabah and Sarawak, my respectful appeal to you is: think seriously about how to make the application of the IGC recommendation more effective to genuinely safeguard the interests of those who seek justice from our highest courts. Make sure we have judges with Bornean judicial experience who can make their presence on the appellate bench count, and he or she is not there just to make up the coram.
The views expressed herein are those of the author personally.