KUCHING, Jan 17 — The Sabah Law Society (SLS) said at least one judge with “Bornean judicial experience” must be included in Court of Appeal and Federal Court benches hearing matters arising from cases from the High Court of Sabah and Sarawak.
SLS president Roger Chin said judges with Bornean experience were uniquely able to appreciate or take judicial notice regarding local conditions, culture and context within which the law operates.
“Ideally, when involving native customary law matters peculiar to Sabah and Sarawak, the majority of the quorum should be the judges with Bornean judicial experiences.
“The law does not operate within a vacuum, and the local conditions and the context within which laws are enacted and applied are as important as the strict letter of the law,” Chin said in his speech at the opening of the Legal Year 2020 here.
He stressed, however, that SLS was not casting aspersions on the abilities of other judges.
“However, it is of the view that the other judges, without the Bornean judicial experience, would not be able to properly appreciate and apply the same, through no fault of their own,” he said.
Chin said there are many superior court judges with Bornean judicial experience, meaning the call for “at least one” should not be interpreted as “only one” such judge.
He said in matters such as the recent decision of the Federal Court that touched on the applicability of native laws to the Iban community, it is vital to have many such judges on the panel.
“SLS looks forward to the day when there will be sufficient judges in the appellate courts with Bornean judicial experience, to make it practical for cases dealing issues unique to Sabah and Sarawak to be heard by exclusively judges with Bornean judicial experience,” Chin said.
On his definition of Bornean judicial experience, he said the phrase “judicial experience” is clear, namely that this requires the judge in question to have sat as a judge in Borneo for a sufficient period of time.
“Simply being born and raised in Sabah or Sarawak is not sufficient,” he said, pointing out that there are judges who have sat in Sabah for many years whom, although they were not born in the state, SLS would gladly welcome and accept them as having the requisite Bornean judicial experience.
Chin said SLS wants the requirement of having a judge with Bornean judicial experience to be adhered to by the appellate courts, pointing to paragraph 26(4) of the Inter-Governmental Committee Report 1962 which requires that “at least one” of the judges of the Federal Court should be a judge with Bornean judicial experience when hearing appeals arising out of Sabah or Sarawak.
He said SLS was also concerned with a recent decision of the Federal Court dismissing a review application relating to Iban communities and the applicability of their native laws in Sarawak.
He said the application was to review the Federal Court’s earlier decision where it held that the Iban community’s custom of hunting and foraging in uncultivated jungle for their livelihood had no force of law under Article 160(2) of the Federal Constitution.
Chin said native laws and native issues were as relevant and pressing in Sabah as in Sarawak.