KUCHING, Sept 11 — Sarawak PKR chairman Baru Bian today expressed his disappointment that the issues relating to pemakai menoa and pulau galau were not been addressed by the Federal Court when it dismissed a review application by the native plaintiffs.
“With this review dismissed, it means the issues which we hoped to clarify and determine, which is whether pemakai menoa (territorial domain) and pulau galau (communal forest reserves) have the force of law, remain unanswered,” he said.
The native plaintiffs, in their statements of claims, had said that they have customary rights over the two categories of the lands.
Baru, who represented the native plaintiffs in the Tuai Ruman Sandah anak Tabau case before he was appointed the Works Minister in the Pakatan Harapan (PH) federal government, said the dismissal also means that the natives of Sarawak must continue to assert and claim their rights over NCR lands until another Federal Court's case results in a clear decision.
He said he was aware that a few cases of the same issues have been given leave by the Federal Court to be argued further, but were postponed, awaiting the Tuai Rumah Sandah’s decision.
“Now that this decision to dismiss can be perceived as in fact having ‘no decision at all’ on the issues at hand, I sincerely hope that these pending cases be allowed to be ventilated fully before the Federal Court soon in order for a very clear to be made,” he added.
He stressed this was particularly urgent and necessary in light of the dissenting judgment of Chief Judge of Sabah and Sarawak Tan Sri David Wong, who himself is a Sabahan.
Earlier today, the apex court ruled that the native custom has no force of law over pemakai menoa and pulau galau.
In a 4-1 majority decision by the five-member bench, it held that there was no basis for a new panel of the Federal Court to review the earlier decision of the court.
Chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judges Datuk Alizatul Khair Osman Khairuddin, Tan Sri Idrus Harun and Datuk Mohd Zawawi Salleh decided the majority decision while Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah dissented.
Justice Azahar said the grounds for review submitted by counsels representing Tuai Rumah Sandah Tabau and Siew Ak Libau respectively in Kanowit and Sibu that the Federal Court’s earlier decision had erred in law and had made various obvious errors, was not a valid and legitimate basis to seek a review of the Federal Court decision.
He said it was not for the Federal Court review panel to resolve whether the earlier panel in the same case had interpreted or applied the law correctly or not for that it was a matter of opinion.
On the question of the composition of the panel of judges of the earlier Federal Court panel, justice Azhar said they did not raise objection to the composition of the panel then.
The applicants had contended that the composition of the earlier Federal Court panel that heard the appeals did not have a judge with Bornean judicial experience thereby contravening paragraph 26 (4) of the Inter-Governmental Committee Report (IGC) 1962 read with Article 8 of the Malaysia Agreement.
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