The Right to Appeal is a Basic Human and Constitutional Right
by Jose Mario De Vega

I overwhelmingly concur with the secretary-general of Proham, Dr. Denison Jayasooria when he categorically stated that: “The right to appeal is the most cardinal of human rights and cannot be taken away”. Further, he passionately asserted that: “The fundamental point in reform here is to open up the judicial process and to throw out ouster clauses. That is a principle of justice”.

It is my unequivocal view that the so-called ouster clauses are incongruent and irreconcilable to the provision and stipulations of the Federal Constitution, by virtue of the grim fact that instead of bolstering and expanding the rights of the citizens in utilizing and invoking the powers and processes of the courts, it reduce and delimit said judicial power and made a mockery of the process of our administration of justice.

What is the legal basis of Dr. Jayasooria’s position?

It is my firm and fervent view that the basis of his contention squarely lies in the universally sanctioned principle of the constitutional presumption of innocence of the accused and correspondingly the latter’s constitutional right to exhaust all available remedies under the law to prove his/her innocence.
The Constitution expressly provides that a person is deemed and presumed innocent until proven otherwise.
Based on the main, only the judge or the magistrate or the court has the exclusive power to pass judgment declaring an individual guilty or innocent base on the evidences adduced and presented.
In the event that an accused was declared culpable or found guilty as charged by the court hearing the said trial, it is still the right of the said convicted felon to appeal the said findings or ruling or judgment to the next higher court.

The reasons for all these procedure are the following legal doctrines:

a. The Doctrine of Pro Reo. It simply means that criminal laws are liberally construed in favor of the accused and strictly against the State. Why? Due to the enormous powers of the State, all prudence and protection must be given to an individual appearing before the court. Corollary to this principle is the indisputable fact that the Bill of Rights is a permanent injunction against the arbitrariness and excessiveness of the State power. Further, the right to appeal was included to the list of the constitutional rights of the accused to prevent any grave abuse of discretion on the part of the government, the court itself and all organs of the state. The vital purpose is for the superior court to review, revise, deny, grant, affirm and modify the ruling of the lower court to correct reversible errors and to lay down jurisprudence for the benefit of the bar, the legal profession, the community and society at large.

The end of all these are always and still, to protect the rights, dignity and humanity of the individual undergoing the rigid and complex process of the judicial function.

b. The second basis of Dr. Jayasooria’s contention, in my view is anchored on the legal principle and/or the Doctrine of the Separation of Powers of the different branches and/or organs of the government.

The Doctrine of the Separation of Powers and the Principle of Checks and Balance

It is a basic elementary knowledge in any democratic form of government that the duty of the Legislature is to create laws, while the Executive function is to execute and implement the same and the duty of the Judiciary is to interpret the said laws.
Assuming arguendo, that Parliament has passed a law which is in contravention of the Constitution, it is the inherent role and incumbent duty to declare the said ‘law’ as unconstitutional for being violative of the fundamental law. Of course, a verified petition questioning the validity and legality of the said must be lodged by any aggrieved party or any citizen whose rights is to be damage and/or prejudice by the said legislation; so that the court may acquire jurisdiction.

Not only does the court has the sole power and the sound discretion to declare a law illegal, it is part and parcel of its residual, moral and persuasive power to castigate the erring party or institution or ministry or office or department behind the aberrant law.

That is Judicial right and propriety!

It is in this constitutional sense that “Parliament can’t limit judicial powers; even the Executive and the Legislative must be under the check of the Judiciary — that’s fundamental in a democracy.”

The Malaysian Bar president, Lim Chee Wee aptly said that:

“Judicial review was an important application of the rule of law on the administrative aspects of governmental power.

“It may be taken to refer to the process by which the courts exercise their supervisory jurisdiction to see that public authorities do not act outside the remit of their powers.”

What is judicial power?

Judicial power is the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Henceforth, based on this legally well-entrenched constitutional rule: “The position of the right to appeal is non-compromisable.”
The right to appeal is non-derogable right. Meaning, no legislation nor laws can diminished nor delimit the said right!

Why? Because the court is the final arbiter and interpreter of the law and it is the last bastion for the aggrieved parties, it is the refuge of those whose rights were viciously violated, reputation besmirched, dignity stamped and humanity blackened.

It is not an exaggeration to state for all intents and purposes that the courts are nothing more than as the temple of justice, equity and rights!

To remove the right to appeal is to diminished the provision of the Bill of Rights. To limit the power of the courts to assume n jurisdiction on appeal cases is to negate the whole set-up of our democratic make-up.

To close the reasonable and legal avenue for the people to go to the courts to fights for their rights is to open the floodgates of justifiable reason for the people to go to streets — to fight for the same rights.

Is this what we want?

Last, but not the least, this author incontestably subscribed with the position taken both by Proham and the Malaysian Bar for the restoration of the original Article 121 of the Federal Constitution which sets out the power of the court and for the immediate and prompt repeal of the ouster clauses.

Jose Mario Dolor De Vega

June 20, 2012

Subang Jaya, Darul Ehsan,
Selangor, Malaysia

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