From Ibrahim M Ahmad
The discontent expressed by several Sabah leaders after the federal government announced its decision to file a partial appeal in the federal revenue share case has been unsettling.
In particular, Warisan president Shafie Apdal’s “hope” that the federal government would not appeal the decision set out in Justice Celestina Stuel Gadit’s lengthy written judgment betrays his stature as a politician of 30 years’ standing — 20 of which were spent as deputy minister (1995 – 2004) and minister (2004 – 2015) in the federal Cabinet.
Then there is Sabah Barisan Nasional chairman Bung Moktar Radin, who described the federal government’s move as “disappointing” and urged full recognition of the state’s constitutional entitlement.
Even more surprising was Sabah Law Society’s (SLS) criticism of the partial appeal, which seeks to challenge the judge’s findings that both the federal and Sabah governments had failed in their constitutional duties.
As an eminent body of lawyers, SLS will know that an appeal is a statutory right that every party, irrespective of standing, enjoys.
It is also an important aspect of the rule of law.
After all, no judge is infallible, least of all judges of the High Court whose decisions are by law subject to scrutiny at two levels — the Court of Appeal and the Federal Court.
That is because any judge can err in law or fact, and appeals from the High Court, presided over at each level by three or more judges, offer a time honoured mechanism to correct errors.
The appeal process ensures that all judicial decisions are subject to rigorous scrutiny — an important facet that reinforces the integrity of the legal system.
Appeals also allow for legal principles to be harmonised for consistency.
One of the primary ways this takes place is via the principle of stare decisis, another time honoured legal mechanism that requires lower courts to follow precedents set by the higher courts in the legal system.
However persuasive her reasoning may be, Celestina’s decision, being one of the High Court, is not binding on any other superior court — not even on the High Court judge sitting in the courtroom next door to her.
In contrast, a Federal Court decision is binding on all courts below it. The same applies for decisions of the Court of Appeal.
There is also the underlying principle of natural justice and fairness. It is trite law that the right to be heard includes the right to appeal to challenge an adverse decision.
And what about Article 8 of the Federal Constitution? All persons are equal before the law and entitled to equal protection. Surely this constitutional right accrues even to the federal government.
The federal government is entitled to feel aggrieved at certain aspects of the judgment.
For instance, in paragraph 211 of the grounds of judgment, the judge concluded that “the federal government and the Sabah government’s use of their respective powers under Article 112D of the constitution not only amounted to an abuse of power but a breach of constitutional duties”.
Now, that is a grave finding that warrants scrutiny on appeal.
Was the judge entitled to make that finding on the law and limited facts before her? Was this not an issue involving mixed questions of law and fact? Could such a finding be made in judicial review proceedings without the benefit of oral evidence from members of both governments? Is the finding correct both in fact and law?
Then there is paragraph 212, in which the judge concludes that the second review order, made in 2022, was “illegal, irrational, procedurally improper and/or disproportionate”. Again, was she entitled to make that finding on the material before her?
These are just some concerns about two paragraphs in a 235 paragraph judgment spanning 109 pages. There are likely to be many more that Attorney-General Dusuki Mokhtar will want to challenge on appeal. That is the federal government’s right as a party to court proceedings.
Prime Minister Anwar Ibrahim was entirely correct to insist in Parliament on Thursday that the federal government cannot remain quiet and accept accusations of abuse of power and breaches of constitutional duties by multiple administrations dating back to 1974.
Is SLS suggesting that the Sabah government too must accept the same adverse findings made against it? What are the consequences? From a legal standpoint, can Sabah benefit from its government’s own breaches of duty and abuse of power?
The reality is that SLS brought a political dispute into the legal environment. That is their right, but having done so, they cannot clip the federal government’s wings by demanding that it not exercise its strict legal rights on political grounds.
Let’s be honest: appeals are not betrayals. Pressuring the prime minister to forgo the federal government’s right of appeal isn’t about legal principle — it’s about flexing political muscle, especially with Sabah’s state election imminent.
It’s about extracting every ounce of juice from the “Sabah for Sabahans” sentiment. There is no harm in that, but it cannot be done in this way.
Let’s leave our political games outside the corridors of justice.
The federal government may owe certain constitutional duties to Sabah, but it also has corresponding duties to discharge for the benefit of the rest of Malaysia.
To his credit, Anwar on Thursday also called for both the federal and state governments to negotiate in good faith. Wouldn’t that be the best way forward?
Ibrahim M Ahmad is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of FMT.
