AUGUST 21 — Prime Minister Datuk Seri Anwar Ibrahim has defended the government’s appeal over the Court of Appeal’s ruling that decriminalised “offensive” online remarks.
A right to appeal is a substantive right, not a mere procedural right. 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], said:
“[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].”
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.
It is vital that the right exists, and exercisable by aggrieved parties – the government is an aggrieved party in the Court of Appeal’s ruling. 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, while we respect the Court of Appeal’s decision, we must equally respect the right to appeal of aggrieved parties.
Even if the aggrieved party is the government.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
