OCTOBER 18 — In “Courts are final arbiter of issues related to fundamental liberties”, written more than two years ago, I referred to the erudite judgment of Lord President Salleh Abas in the case of Lim Kit Siang v Dato Seri Dr Mahathir Mohamad [1987] where the head of the judiciary said as follows:

“The courts have a constitutional function to perform and they are the guardian of the Constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review — a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both.

“The courts are the final arbiter between the individual and the State and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.”

In a federation like Malaysia, the courts are also the final arbiter between federal and state governments. (See Shad Faruqi, “Constitutional Interpretation in a Globalised World”)

If that role of the judiciary is appreciated then, as the Lord President puts it, the courts must be seen as only doing their duties “to uphold the Constitution and act within the provisions of and in accordance with the law.”

That’s what the Kota Kinabalu High Court did when it ruled that the federal government acted unlawfully by not fulfilling Sabah’s right to 40 per cent of federal revenue for nearly 50 years.

In upholding the Federal Constitution, High Court Judge Celestina Stuel Galid declared that the special grant arrangements between the federal and state governments were “unlawful, ultra vires, and irrational,” as they violated the Federal Constitution.

“It is unlawful on the part of the federation to make the intended special grants under the 10th Schedule,” the learned judge was reported as saying.

The learned judge found that the Second and Third Review Orders issued by the federal and state governments were invalid, ruling in favour of the Sabah Law Society (SLS)’s legal challenge that the federal government failed to uphold Sabah’s rightful share of federal revenue as stipulated by the Federal Constitution.

The learned judge also issued a mandamus order, compelling Putrajaya to review the revenue allocation with the Sabah government as well as ordering that an agreement be reached on Sabah’s 40 per cent share of federal revenue for each financial year from 1974 to 2021, which has to be completed within 180 days.

Expectedly, the Sabah government has hailed the High Court’s decision, calling it a long-overdue vindication of the Malaysia Agreement 1963 (MA63).

Curiously though, SLS has urged the federal government not to appeal the High Court’s decision. SLS immediate past president Datuk Roger Chin has even warned that any attempt to appeal the ruling would “betray sincerity”.

“The SLS will vigorously resist any attempt to appeal or undermine this decision. It is hoped that now that the Court has spoken and decided, the federal government will respect the judicial process, accept the outcome, and abide by it,” he said.

SLS is entitled to resist an appeal, but it has to be mindful that an appeal is not to “undermine” the decision.

As I wrote about two months ago, the right to appeal is a substantive right, not a mere procedural right. (See judgment of Gopal Sri Ram, then a judge of the Court of Appeal, in Majlis Perbandaran Pulau Pinang v Lembaga Rayuan Negeri Pulau Pinang & Anor [2006])

An appeal is the most obvious way in which individual judges are accountable for their decisions. It also allows an aggrieved party to have the decision of a judge or panel of judges to be reviewed by another independent judge or panel of judges.

The court hearing an appeal will correct errors by the lower court judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions.

In these ways the right of appeal furthers the rule of law.

So, while we hail the Kota Kinabalu High Court doing its duty to uphold the Federal Constitution, we must equally respect the right to appeal of aggrieved parties.

Even if the aggrieved party is the federal government.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.