The necessity of a judge with Bornean judicial experience in constitutional cases is not mandatory under current law, resulting in dismissal of the application.

[12] The sole ground for this application by the applicant was a coram failure of the Bench of the Federal Court that sat and decided the case on appeal from the decision of the Court of Appeal.

[13] As to when "coram failure" occurs had been explained by the Federal Court in the cases of Gurbachan Singh Bagawan Singh & Anor v. Vellasamy Pennusamy & Ors & Other Applications, 2012 MarsdenLR 1739 and Raja Petra Raja Kamarudin v. Menteri Dalam Negeri ; [2018] supp MLJ 471 ; [2010] 4 CLJ 25. It was held based on the decision of these two cases a coram failure occurs when the number of judges hearing a case before the Federal Court should at any time fall below the number specified under s 74 of the Courts of Judicature Act 1964 ("CJA"). Section 74 of the CJA provides as follows:

74(1) Subject as hereinafter provided, every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine.

(2) In the absence of the Chief Justice, the most senior member of the Court shall preside.

[14] Learned counsel for the respondents submitted, on this issue of coram failure, there was no allegation by the applicant that at any time during the proceedings before the Court hearing the appeal then, that the panel had less than the number of judges specified by s 74 of the CJA. As such, there was no coram failure. On this point, we agree with the submission of the respondents since there was no coram failure, the allegation of injustice and procedural unfairness were clearly unsustainable. We take the view that to review the judgment given by the panel of the Federal Court which heard and decided on this case on its merits would in fact cause injustice to the respondents as the applicant through its own fault had not raised its objection on this issue before the said panel of the Federal Court. Such an issue on the composition and competency of the members of the Bench of the Federal Court should have been taken up by the applicant as the appellant as a matter of procedure at the outset of the hearing of the case and not after the case has come to a final conclusion.

[15] For the applicant, it was argued that there has been a violation of art 128 of the Federal Constitution read together with para 26(4) of the IGC report when there was no member of the panel that heard and decided the present case, of a judge with Borneo judicial experience. With respect, it is our considered view that art 128 deals specifically with the jurisdiction of the Federal Court but not its constitution or composition. (See ss 81 and 82 of the CJA). The Federal Court when dealing with the applicant's appeal then was exercising its appellate jurisdiction. Therefore the reliance on art 128 of the by the applicant is totally misplaced when the complaint is on an alleged "quorum failure" of the said Federal Court appeal panel.

[16] It is to be noted that it is art 122 of the Federal Constitution that provides for the constitution of the Federal Court. This article does not expressly provide that amongst the judges of the Federal Court, there must be one with Bornean judicial experience. A reference was made to the provision of s 19 of the Malaysia Act 1963 and art 123 of the on the qualification for appointment of a judge of the Federal Court. Neither of these two provisions stipulates that the qualification for appointment of a judge of the Federal Court having Bornean judicial experience is either required or preferred.

[17] The composition of the Federal Court at any given time is determined by the Chief Justice. It is also to be noted that subsequent to the IGC report,