A Sarawak firm has applied to set aside a Federal Court ruling that the state government was correct to revoke its 25-year licence to extract timber.
In the application filed on March 20, Keruntum Sdn Bhd said the judgment was defective as none of the five judges on the bench had “Bornean judicial experience”.
It said this amounted to a coram failure as the apex court had overlooked the 1962 Malaysia Report of the Inter-Governmental Committee which paved the way for Sabah and Sarawak to form Malaysia together with the Federation of Malaya and Singapore in 1963. Singapore was removed from the federation in 1965.
Section 26 (4) of the report said that one of the judges of the Supreme Court (now renamed Federal Court) should be a judge from that territory if a case originates from Sabah or Sarawak.
Former chief justice Arifin Zakaria led the panel, with the others being Hasan Lah, Zainun Ali, Abu Samah Nordin and Aziah Ali.
The company which filed for a review under Rule 137 of the Federal Court Rules 1995 said the March 15 decision was invalid as there was a serious miscarriage of justice.
An affidavit affirmed by company director Norlia Abdul Rahman and sighted by FMT revealed, the review application was made as the Federal Court bench was not duly constituted as “there was no judge of Borneo and with Bornean judicial experience”.
Norlia said this was also in violation of Article 128 of the Federal Constitution when read together with Section 26 (4) of the committee report.
She said the decision must be reviewed to remedy the injustice from procedural unfairness due to coram failure.
“This is necessary for a complete administration of justice,” she said.
Apart from setting aside the ruling, Norlia wants another set of five-men bench, with at least one judge from Sabah and Sarawak, to rehear the appeal.
Keruntum had fought a 30-year court battle against the Sarawak government and probably one of the longest civil cases to be decided.
During the trial in the High Court, the company claimed the decision to revoke the licence to log over 188,926 hectares was politically motivated.
This was related to what is known in Sarawak political history as the “Ming Court Affair”, which occurred in March 1987.
The late Sarawak chief minister Tun Abdul Rahman Yaakub led a group of state assemblymen of the Sarawak legislature and their allies to topple incumbent chief minister Abdul Taib Mahmud, who was also the minister of resource planning.
That attempt failed as the chief minister dissolved the state legislative assembly and caused an election in which Taib and his party were returned to power to form the state government.
Justice Hasan Lah, who delivered the judgment of the five-man bench, said the apex court found no reason to disturb the finding of facts by the High Court.
“There is a concurrent finding as the Court of Appeal has held that the trial judge had not erred in facts and law,” he said.
Hasan said the High Court was also right in deciding that Taib, one of the defendants in the suit, need not give evidence as the plaintiff had not proved its case.
“There was no necessity to call the then minister of resource planning (Taib) as witness when Keruntum could not prove its case,” he said.
Hasan said the Federal Court need not also answer a legal question posed whether Taib had committed the tort of misfeasance in public office (abuse of power).
Taib, who was chief minister between 1981 and February 2013, had refused to give evidence in court during the trial.
He is now the Sarawak governor, having assumed office on March 1, 2013.
The company, represented by Gopal Sri Ram, had submitted that Taib had maliciously directed the cancellation of Keruntum’s licence on grounds that Rahman had conspired with several other assemblymen to unseat Taib.
He said the company was associated with Rahman, who is also Taib’s uncle.
Keruntum had filed a judicial review in 1987, naming the Sarawak forest department, Taib and the state government as respondents.
The High Court allowed the review and quashed the revocation. This was upheld by the then Supreme Court in 1988.
However, the company’s licence was revoked for the second time in 1988. It had been in business since 1983.
Keruntum later filed a civil suit in 1990 and serious charges of malice were made against Taib.
Source : V Anbalagan @ FMT Online