Right to appeal is substantive right — Hafiz Hassan

MARCH 11 — I am curious at Selangau MP Baru Bian’s call to the the federal government not to contest yesterday’s High Court decision invalidating a 1986 directive prohibiting Christian publications from using the word “Allah”. 

While the Federal government and other religious leaders should respect High Court judge Datuk Nor Bee Ariffin’s decision, it is a different thing to insist that these parties should not exercise their right to appeal.

A right to appeal is a substantive right, not a procedural right. As a lawyer, Baru Bian may wish to refer to the judgement of Justice Gopal Sri Ram, then a judge of the Court of Appeal, in Majlis Perbandaran Pulau Pinang v Lembaga Rayuan Negeri Pulau Pinang & Anor [2006], where His Lordship said:

“Now, the right of appeal is not a common law right either as a matter of private or public law. It is a creature of statute. If it is not given then it does not exist. And once given, it is a substantive and not a mere procedural right. Support for these propositions may, if sought, be found in Chandrasekaran Thangavelu & Anor v AL Annamalai & Anor [2004].”

A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa

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

It is vital that the right exists, and exercisable by aggrieved parties. It ensures that if a judge does make an error of law or fact, there are ways to correct it.

In this sense the right of appeal as a form of accountability has two distinct (but overlapping) functions, one private and one public. These were first noted by the Roman legal scholar Justinian.

The private function is to provide accountability to the individual litigants. The public function is that enabling errors to be corrected maintains and enhances the confidence of citizens in the justice system. Another aspect of the public function is that the appeal court can provide guidance for future cases and thus facilitate certainty. In these ways the right of appeal furthers the rule of law. 

So, let’s respect the High Court decision.

Equally, let’s respect the right to appeal of aggrieved parties.

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