TR Sandah Federal Court Review — Abdul Fareed Gafoor | Malay Mail

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TR Sandah Federal Court Review — Abdul Fareed Gafoor

SEPTEMBER 21 — The Malaysian Bar views last week’s majority decision of the Federal Court in TR Sandah ak Tabau v Director of Forest, Sarawak as a lost chance for the highest Court to exercise its powers of review to correct any obvious error, injustice or ambiguity contained in its 2016 majority grounds of judgment in Director of Forests, Sarawak v TR Sandah ak Tabau [2017] 2 MLJ 281 .

In arriving at a 4:1 decision not to exercise its review powers in the 2019 Federal Court review, the majority of the Federal Court chose to rely on, amongst other things, the principle of finality of a Federal Court judgment, meaning that the merits of a case or any legal question, no matter how incorrect, should not be reopened once all avenues of appeal have been exhausted, and that the applicants had not demonstrated any exceptional circumstances to merit an intervention into the 2016...

While it may be the end of the matter for the native applicants in the instant case, other native claimants of native customary rights in the State of Sarawak facing the same issue have the option of persuading the Federal Court to revisit the legal question on the enforceability of Pemakai Menoa and Pulau Galau in another future case.

Of wider significance is the majority decision in the 2019 Federal Court review on the applicants’ argument that none of the judges who presided over the 2016 Federal Court decision had sufficient Bornean judicial experience as envisaged in Article 26 of Chapter 3 of the Report of the Inter-Governmental Committee, 1962 read together with Article VIII of the Malaysia Agreement.

 

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