TR SANDAH TABAU & ORS v. DIRECTOR OF FOREST, SARAWAK & ANOR AND OTHER APPLICATIONS
[2019] 10 CLJ 436
FEDERAL COURT, PUTRAJAYA
AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); ALIZATUL KHAIR OSMAN FCJ; MOHD ZAWAWI SALLEH FCJ; IDRUS HARUN FCJ
[CIVIL APPLICATIONS NO: 01-27-04-2015(Q), 08(RS)-3-03-2019(Q) & 08(RS)-4-03-2019(Q)]
11 SEPTEMBER 2019
Abstract:
1. The customs of ‘pemakai menoa’ and ‘pulau galau’ as practiced by the natives of Sarawak did not come within the definition of ‘law’ in art. 160(2) of the Federal Constitution and did not, therefore, have the force of law in Sarawak.
2. The inherent jurisdiction and powers of the Federal Court to review its own decision under r. 137 Rules of the Federal Court 1995 must be sparingly exercised. The court cannot invoke the power to review on merits and before the power could be exercised it must be shown that there was injustice on the face of the record. Accordingly, arguments such as the earlier panel had arrived at a wrong result, or misinterpreted another decision of the Federal Court, or misinterpreted the statutes or case law, or went against the weight of legal authorities, or wrongly disturbed findings of facts by the courts below cannot form a valid and legitimate basis to seek a review under the rule.
3. The recommendation under para. 26(4) of the Inter-Governmental Committee Report 1962 read with art. VIII of the Malaysia Agreement 1963 that the Federal Court hearing an appeal from a case originating from Borneo States should comprise of at least one judge with ‘Bornean judicial experience’ cannot be enforced because the same has never been implemented by legislative, executive or other action of the Governments of the Federation of Malaysia, Sabah or Sarawak, and also not incorporated in the Constitution of Malaysia. It is also clear on reading s. 74 of the Courts of Judicature Act 1964 together with art. 122 of the Federal Constitution, that there is no legal requirement that the Federal Court, when hearing or disposing of such cases, must consist of at least one judge with Bornean judicial experience.
CONSTITUTIONAL LAW: Federal Court - Inherent powers - Review - Power to review own decision - Principles - Whether exercisable in very limited circumstances - Whether to prevent injustice - Whether must be of fundamental importance to certainty of administration of law - Finality of proceedings - Rules of the Federal Court 1995, r. 137
CONSTITUTIONAL LAW: Federal Court - Inherent powers - Review - Power to review own decision - Question of law whether Iban customs of 'pemakai menoa' and 'pulau' had the force of law - Decision of earlier panel - Whether equally divided and not a majority judgment - Whether suffering from coram failure - Whether appeals to be reheard - Keruntum Sdn Bhd v. The Director of Forests & Ors - Whether still good law - Rules of the Federal Court 1995, r. 137 - Federal Constitution, arts. 128, 160 - Courts of Judicature Act 1964, ss. 4, 74, 77, 78
CONSTITUTIONAL LAW: Federal Court - Review - Power to review own decision - Question of law whether Iban customs of 'pemakai menoa' and 'pulau' had the force of law - Constitution of panel - Whether there was requirement in law to have presence of 'judge with Bornean judicial experience' - Inter-Governmental Committee Report 1962 and Malaysia Agreement 1963 - Whether enforceable - Whether Judiciary obligated to implement provisions and recommendations thereof - Rules of the Federal Court 1995, r. 137 - Federal Constitution, art. 128 - Courts of Judicature Act 1964, ss. 4, 74, 77 - Inter-Governmental Committee Report 1962, para. 26(4) - Malaysia Agreement 1963, art. VIII
LAND LAW: Customary land - Native customary rights - Iban customs of 'pemakai menoa' and 'pulau' - Whether legally recognised customs in Sarawak - Whether having the force of law - Federal Constitution, art. 160(2)
WORDS & PHRASES: 'judge with Bornean judicial experience' - Inter-Governmental Committee Report 1962, para. 26(4) - Meaning - Whether to mean judge with experience of serving as High Court Judge or Judicial Commissioner in Sabah or Sarawak
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