One of the lawyers for the Sarawak natives in Thursday's Federal Court decision denied that they had failed to sufficiently address the issue of unconstitutionality of the Sarawak Land Code.
Baru Bian, who is also Ba'Kelalan assemblyperson in Sarawak, believes it was Chief Justice Zaki Azmi's and Chief Judge of Sabah and Sarawak justice Richard Malanjum's own opinion not to give a ruling on the constitutional question when such issues had been dealt with in court.
"I believe we have addressed the issue of the unconstitutionality of the land grab. I personally think they were evading the practical problem on the ground whether section 5(3) and (4) of the Sarawak Land Code should be nullified," he told Malaysiakini.
On Thursday, both Zaki and Malanjum did not give their decision on the question of unconstitutionality of the Sarawak Land Code in the Bato Bagi and Jalang Paran suits against the Sarawak government.
The question posed before the court to be decided was "whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires of Article 5 (right to life) and Article 13 (right to property) of the federal constitution."
Zaki, in his 15-page judgment, said the issue of unconstitutionality as pointed out by justice Malanjum were not raised or properly canvassed before the court.
Malanjum, who was the first of the three-member Federal Court panel to read his judgment, said that there were limited submissions before this court (on unconstitutionality of section 5(3) and (4)), and there was no need for him to answer the question posed.
"To do so would be unfair not only to this court but to the parties as well. I think that such an important issue is best left to another occasion when it is fully ventilated instead of being made just a side issue," he said.
The chief judge of Sabah and Sarawak went on further to say that the facts and circumstances of these cases should also be taken into account.
"For instance, in the Bato case, the compensation money was agreed and accepted by them. They did not go for arbitration. They did not even accept the compensation under protest.
"Further, the land in question is now under water upon the completion of the Bakun dam. There is no question of returning it to them," he said.
Meanwhile, Federal Court judge Md Raus Sharif, who is the incoming Court of Appeal president, was the only judge who ruled on the question when he decided the land grab was constitutional.
There will be other cases
Baru said it could be the opinion of the judges that there were no submission before them.
"In fact, there were oral and written submission on the matter made before the panel. But we have to respect the decision since they are the judges," he said.
"We will have to wait for other cases to come before this court for this question to be answered. There are many pending - about 100 (cases) of them," he pointed out.
Sahabat Alam Malaysia representative Mohideen Abdul Kadeer said if the judges felt there were not enough submissions on the unconstitutionality question, they should have asked the lawyers to produce them.
"They can stop the parties during submission and clarify as to why such issues were not brought up. The judges should not wait until the decision is made," said Mohideen.
Law professor Abdul Aziz Bari has yesterday described the two top judges' action, in not answering the constitutionality issue, as anabdication of their oath of office which they took before the Agong.
Baru Bian, who is also Ba'Kelalan assemblyperson in Sarawak, believes it was Chief Justice Zaki Azmi's and Chief Judge of Sabah and Sarawak justice Richard Malanjum's own opinion not to give a ruling on the constitutional question when such issues had been dealt with in court.
"I believe we have addressed the issue of the unconstitutionality of the land grab. I personally think they were evading the practical problem on the ground whether section 5(3) and (4) of the Sarawak Land Code should be nullified," he told Malaysiakini.
On Thursday, both Zaki and Malanjum did not give their decision on the question of unconstitutionality of the Sarawak Land Code in the Bato Bagi and Jalang Paran suits against the Sarawak government.The question posed before the court to be decided was "whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires of Article 5 (right to life) and Article 13 (right to property) of the federal constitution."
Zaki, in his 15-page judgment, said the issue of unconstitutionality as pointed out by justice Malanjum were not raised or properly canvassed before the court.
Malanjum, who was the first of the three-member Federal Court panel to read his judgment, said that there were limited submissions before this court (on unconstitutionality of section 5(3) and (4)), and there was no need for him to answer the question posed.
"To do so would be unfair not only to this court but to the parties as well. I think that such an important issue is best left to another occasion when it is fully ventilated instead of being made just a side issue," he said.
The chief judge of Sabah and Sarawak went on further to say that the facts and circumstances of these cases should also be taken into account.
"For instance, in the Bato case, the compensation money was agreed and accepted by them. They did not go for arbitration. They did not even accept the compensation under protest."Further, the land in question is now under water upon the completion of the Bakun dam. There is no question of returning it to them," he said.
Meanwhile, Federal Court judge Md Raus Sharif, who is the incoming Court of Appeal president, was the only judge who ruled on the question when he decided the land grab was constitutional.
There will be other cases
Baru said it could be the opinion of the judges that there were no submission before them.
"In fact, there were oral and written submission on the matter made before the panel. But we have to respect the decision since they are the judges," he said.
"We will have to wait for other cases to come before this court for this question to be answered. There are many pending - about 100 (cases) of them," he pointed out.
Sahabat Alam Malaysia representative Mohideen Abdul Kadeer said if the judges felt there were not enough submissions on the unconstitutionality question, they should have asked the lawyers to produce them.
"They can stop the parties during submission and clarify as to why such issues were not brought up. The judges should not wait until the decision is made," said Mohideen.
Law professor Abdul Aziz Bari has yesterday described the two top judges' action, in not answering the constitutionality issue, as anabdication of their oath of office which they took before the Agong.
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