If you disagree with a Malaysian court's decision, can you change it?

Imagine you’re suing someone for not fulfilling their side of a contract you both signed. The court battle has been long, tedious, and in some parts, downright painful.

But today! 

Today is the day!

The day you finally get your long awaited judgment! 

You are pretty sure that the judge is going to rule in your favour because it is exceedingly clear that your opponent was slimier than yesterday’s grease. All the evidence needed to show that he breached the contract was in that thick bundle in front of the judge. 

To your horror, the judges proceed to pass judgment in favour of your opponent.

Your lawyer, equally as stunned, tells you: 

“It’s okay, we can appeal this”.

What in the world is an “appeal” and how will it solve your problem?

An appeal is like asking for a second chance

In our past articles, we covered how the court systems work for the civil and criminal systems respectively and you can read about it here and here. 

To get right into it, an appeal is basically asking for a higher court to take another look at your case because you believe that mistakes have been made in the judgment by the lower court. There are many procedural aspects to jump over when appealing against a decision but we won’t go in-depth into it. Just know that when it comes to appeals, certain scenarios may require for you to obtain leave from the court above before you are allowed to file your appeal. A leave from court is basically asking for permission to appeal. 

Aside from that, there are also strict timelines to comply with for the documents you need to file. For example, you have to file your notice of appeal within 14 days from the date of the lower court’s judgment and the petition of appeal 14 days after getting the notes of evidence etc. In essence, when it comes to appealing a case, lawyers have to work fast to ensure that you don’t miss all the important timelines.

Very simply (again, read our articles linked above), appeals can be brought up the chain of courts in the order below, ending in the Federal Court

1. High Court
2. Court of Appeal
3. Federal Court

While certain cases have an automatic right of appeal to the High Court and Court of Appeal, there is never an automatic right of appeal to the Federal Court. An automatic right happens in cases when you don’t have to ask for permission and can just start filing the necessary documents needed to appeal. 

With this being said, let’s dive deeper into the Federal Court and what they do.

The Federal Court has an extra dash of power

Under section 96 of the Courts of Judicature Act 1964 (“CJA 1964”), there is basically no automatic right to appeal to the Federal Court, unlike the High Court or the Court of Appeal. Why is this court so special?

Well, the Federal Court is what is known as the apex court in Malaysia – that basically means that it is the highest court in the land and its decisions are more or less final. We say more or less final because there are two scenarios in which a Federal Court’s decision can be changed. Before we get into that, let’s look at how you can qualify to have your case heard on appeal in the Federal Court. 

Section 96 reads:

“...an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court—

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or

(b) from any decision as to the effect of any provision of the Constitution including the validity of any written law relating to any such provision.”

Widely speaking, there are three situations where leave (permission) would be granted:

1. Where the case started in the High Court and was heard on appeal in the Court of Appeal on a matter that the Federal Court has never decided on. For example, if the courts in Malaysia have never defined “public nudity”, they may allow an appeal to answer this never before asked question
2. Where the case started in the High Court and was heard on appeal in the Court of Appeal and it is a question that if answered by the Federal Court, would be beneficial to the general public. For example, if a court in 1990 defined “public nudity” and the courts in 2018 feel like this definition is wrong and correcting it would benefit the public, they may allow an appeal for this publicly beneficial question
3. If it is a question about the Constitution (your good old constitutional rights)

However, because these considerations are pretty open ended, the case of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd stepped in to provide some guidelines to approving leaves to appeal. The judgment for this case was longgggg and the guidelines run into 7-10 considerations so we will breeze over that to save your souls.

In a nutshell, the Federal Court judges have to take into account things like whether there was a consistent misinterpretation of the law (for example, the groundbreaking case of Boonsom Boonyanit and how it was criticised), whether there was a dissenting (disagreeing) judgment in the Court of Appeal and so on. 

There are certain things that the Federal Court cannot listen to an appeal on as well but we won’t go into it because it can get pretty confusing. 

At this point, if you are thinking that if you appeal a decision to a higher court because the lower court is wrong and the Federal Court is the highest court...what if they were wrong?

No one can change the Federal Court’s decision

As the apex court, the decisions made by the Federal Court are final because a case cannot be consistently appealed against; there must be an end point. This is the legal equivalent of drawing the line when your kid has spent the last ten hours chewing on your sofa and now wants to gnaw on your MacBook. For better or for worse, the road ends at the Federal Court.

With that being said, like all other general rules in law, there are always exceptions.

There are two ways for a Federal Court decision to be changed:

1. Where the Federal Court makes a decision in one case and a later Federal Court makes a completely different decision. This is known as the system of judicial precedent and you can read about it here
2. Where the Federal Court allows a review for your case 

We would like to focus on reason numero dos because that is the scenario that you would want. This is because a later case that changes the law will not apply backwards to right your wrong in the past. The law just moves on from that point and does not look back (just like you and your ex). 

However, if you manage to score a review of your case, then things may be looking peachy for you. 

Reviews of Federal Court decisions are notoriously difficult to obtain. For example, in our Boonsom Boonyanit example above, her son, Kobchai Sosothikul, actually wrote to the Federal Court twice to request for a review of their decision but they were turned down despite many believing that the decision was manifestly unjust. 

The case of Asean Security Papermills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Berhad explains that in order to receive a review, the court must be satisfied that it based on exceptional grounds such as when the decision was obtained by fraud or suppression of important evidence or when there was a clear infringement of statutory law (not just a misinterpretation of the law like what happened with Kobchai Sosothikul). 

At the end of the day, what we learn is…

The ability to appeal is not infinite

While you can appeal if your case checks off all the boxes, there must be an end to it somehow. If there isn’t, there will be cases that will be fought for generations with no end in sight, causing a huge drain in resources and wasting the court’s time. 

It’s like how if you ask someone to go out with you and they keep saying no, you gotta stop somewhere (but really though, accept a no and move on, okay?).

As always, if the going gets tough, the tough gets a lawyer.