comment The appellate courts are in danger of taking self-parody to farcical lengths.

NONE The latest demonstration of this distressing trend is yesterday’s unanimous decision of a three-member panel of the Court of Appeal’s to overturn an award of RM2.5 million in damages to ex-ISA detainee Abdul Malek Hussein ( right ) by the High Court in 2007.

In a perverse twist, costs of RM50,000 were awarded against the respondent.

This decision represents the second time this year an appellate panel has unanimously overturned a decision of the High Court, the first was when the Federal Court, with stupefying 5-0 unanimity , affirmed the Court of Appeal’s decision to upend a High Court decision last year affirming Pakatan Rakyat’s Mohd Nizar Jamaluddin as menteri besar of Perak.

That decision of the apex court was a grotesquery because it ignored the jurisprudential tradition of stare decisis , which is that judges adhere to the legal principle established in analogous cases in the past, unless of course the case posits a unique fact situation.

There were no unique facts in the Nizar vs Zambry contest of who was the legitimate chief minister of Perak.

The established jurisprudence in the matter was that while the menteri besar is appointed by the ruler, he can only be removed by a vote of the legislature.  

This decision of the apex court and yesterday’s by the Court of Appeal in the ISA case were exercises of raw judicial power against the weight of legal tradition and evolving sensitivity to human rights.

They represented a significant overreaching of the appellate role.  

In the ISA case, the judges did not confine themselves to points of law but also of fact, which is an overly capacious reading of their function.  

Law not a power play

It is easy to demonise a decision you disagree with.

But when decisions of the appellate courts are not grounded in a consistent vision of the law and a concern for the bipartisan legitimacy of the courts as an institution of civil society, one is left with the impression that constitutional law is little more than a reflection of vagrant impulses and imperious appetites.

Constitutional law is not a power play between competing ideologies reflecting the happenstance of the most recent judicial appointments.

It is a body of thought grounded on philosophical and moral percepts quarried in the deeps of the historical imagination and on outstanding judges’ personal premises.

The redeeming feature about the jurisprudential tradition is that time permits re-deliberation and repudiation of false premises.

The sand running through this judicial hourglass tends to the expiry of the false and affirmation of the true.

From that perspective, recent decisions of the appellate courts in Malaysia display an expiry date pre-set by the reformist gales of democratic refreshment and replenishment.