Why was one decision to appeal made faster than the other?

Judicial independence is the capstone of good governance. Any “compromise” by the executive or legislature on judgments by the courts renders its role ineffective.

By law, the attorney-general (AG) plays a dual role — as public prosecutor and advisor to the government.

As public prosecutor, he has full authority to initiate prosecutions or conversely, after due consideration, cease them.

In the court process, the right to appeal a judgment is enshrined. Given due process, when matters are elevated to the courts, some appeals are lodged as a matter of course. On appeal, depending on merit, judgments of higher courts quite often differ from those below.

The time period for submitting such appeals is also stipulated, as opposed to being open-ended.

Two recent cases have attracted public interest. The first is on the “disappearances” of Pastor Raymond Koh and activist Amri Che Mat, both in questionable circumstances. The other is on the sharing of revenues between the federal and state governments.

On the former, the AG should be commended for his swift action in deciding to appeal — literally overnight. One would assume that he burnt the midnight candle to come to his decision, which, incidentally, has attracted international media attention.

A layman can only surmise that the AG took the view that the learned judge in this case must have been so way off base that it elicited such a speedy decision. The correctness of this decision is left to be seen as the appeal process continues.

On the latter case of revenue entitlement, it is now on record, three weeks after the court’s judgment and a special Cabinet meeting, that the government will not appeal the 40% issue.

Herein, lies the perplexing issue — why does one case warrant an immediate overnight decision to appeal and not the other?

This decision on revenue is good news for Sabah. The optics is that some are deeply traumatised that the state has been shortchanged since 1974. Really?

Politicians in the state had urged the prime minister not to proceed with an appeal. Why was this necessary?

Logically, if one’s case is watertight, there should be no reason to expect a reversal on appeal. Or is the judiciary so unpredictable that we cannot expect rational judgments?

To further express solidarity, a minister serving at the Federal level had resigned. The Sabahan finds the views expressed by the AG inconsistent in relation to the Malaysia Agreement 1963 and Malaysia Act documents.

The decision not to appeal the 40% revenue issue must be visualised against the backdrop of state elections to be conducted shortly. If there is a change of political leanings, holding on to power both at state and federal levels may be compromised.

Notwithstanding this, the government will still appeal certain parts in the judgment which may not accurately reflect actual actions over the years. It is to set the record straight on fundings.

However, it has repercussions, as Sabah may lose its right to “arrears” for the so-called “Lost Years”. A dilemma in the making!

Moving on, in the same vein, certain quarters, including a current MP, are now posturing that even in the case of Koh and Amri, any appeal should be limited.

This case should also be accorded the same due process – appeal the quantum by all means, but not the malfeasance from the authorities.

The part of the court decision, which holds the authorities responsible, should be respected and not appealed. There is no politics or dilemma here.

Surely such logic and fairness should also prevail in “disappearance” cases. Just as Sabahans are traumatised, so are the wives and families of Koh and Amri.

Caution is in order as the case touches on religious sensitivities. Such “disappearances” are rare, if any. It is also alleged that police officers are in the fray. This is worrisome.

Any inordinate delay reeks of double standards. The statement by the home minister rings hollow. Perhaps he was on sabbatical from 2020 when the Special Task Force completed its report.

People just don’t fall off the face of the earth, especially in Malaysia. That is the crux.

This is an enforced disappearance case which has attracted international attention.

Coming on the heels of the Football Association of Malaysia’s players issue, surely our lack of governance should not be paraded for ridicule on the global stage, what more with all the hype after Asean.

In good governance, equity is imperative. Courting the appeal process should not hinge on extraneous factors, political or otherwise.

The way forward should be based on fact and the consequential effects that it has on the country. Speed and intelligent thought are of the essence — else good governance is only a feel-good mantra.

It is against this backdrop that the AG should not hold the obviously conflicting roles of prosecutor and advisor to the government. The institutional reform minister has set the wheels in motion, so let’s not drag our feet and be befuddled in bureaucracy.

 

The views expressed are those of the writer and do not necessarily reflect those of FMT.