Theirs is a reclusive life. Away from the drama of the trial courtroom, the appeal judges address themselves to apply the law to the cases brought before them.

Invariably the appeal in criminal cases is that the trial judge has made errors sufficient to overturn the guilty verdict. It is the duty of the appeal court judges to review the basis for the appeal, rendering from the existing law an opinion as to whether the errors of the trial judge have been great or small.

The transcript of the trial is laid before them, along with the alleged errors pointed out to them by the defence attorney. Normally, there will be an objection raised during the trial which will be overruled by the trial judge, and this becomes the basis for the appeal.

The appeal court will, however, allow submissions tending to support a claim of general bias on the part of the trial judge which is felt seriously prejudices the right of the defendant to a fair trial.

In their examination of the trial transcript the appeal judges must confine themselves to the written material placed before them. They may not introduce new evidence, nor draw inferences and conclusions which are not based on evidence produced in the trial itself.

They themselves commit a serious judicial error if they bring to the appeal process a prior conviction of the innocence or guilt of the defendant.

The appeal judges must approach their difficult task with an open mind, determined to protect the inherent right of all to a fair trial, free from falsity and malicious intent.

To this end, the appeal judges act as protectors of the rights of us all, taking the side of the defendant in all matters where the preponderance of evidence fails to convince a reasonable man that a finding of guilt is justified.

Inner nature

The appeal judges must not conjecture, nor surmise as to events, nor to motive, nor to the mentality of the defendant. They are confined to the written record before them. To engage in endless speculation as to possible scenarios and motivations is detrimental to the judiciary process, and to present this type of mental meandering to the world as learned deliberation makes a mockery of the law.

Likewise, the appeal judges must not enter into suggestions of conduct which they feel the defendant might have chosen with safety is beyond the pale of any prudent examination of the facts.

The appeal judges must not reveal any bias they may have from prior knowledge that they bring to the case. The writing of a legal opinion opens the mind to view as does no other window known.

It reveals the character, the learning and the clarity of the judge who writes. The inner nature of the man himself is revealed with a clarity that may be missing from the pages of his opinion. When the appeal judge errs, it is err indeed, for it is he is entrusted to know the law, and when he errs, it is for all the world to see.

Students of the law learn from studying the cases which have set legal precedent in the past. Legal literature is thus an area of art and culture of its own, presenting stellar examples of the best thought the human mind is capable of, expressed in the most beautiful language.

The written opinions of appeal judges become the textbooks of the future, open for all to see. As such, they are always written with care.

The appeal court judge, armed with the law and duly authorised to apply it in protecting both the public from criminal conduct and the rights of the citizen to a fair hearing, seeks a balance.

But the balance is always tilted toward the defendant, for reasonable doubt is always on his side. Once the written opinion veers to an adversarial stance against the interests of the defendant, the entire process of the appeal is rendered moot and void.

Primary principle

The appeal court judges must never express a view or opinion which reveals a revulsion toward the defendant or the defence attorney. Every man is equal before the law, and all are entitled to be heard by judges free from duress or influence by parties outside the court.

The first taint of prejudice toward the defendant's right to a fair hearing, or the slightest hint that the defence has acted unethically in presenting the facts of the case in the trial court tarnishes the review process beyond redemption.

The appeal court must never write an admonition in its opinion, nor make threats against any party to the case. This is clearly prejudicial, and grounds for the appeal to be rejected. To write a view that contempt proceedings are warranted against a defence attorney is a novelty not seen in any written legal opinion.

The appeal court must not offer gratuitous opinions regarding matters extraneous to the case before them. They may not comment on the promiscuity of the defendant when this information is neither pertinent to the case at hand nor among the facts of the case they are studying is judicial error.

Neither may they offer gratuitous opinions on matters which are the subject of an ongoing trial. To do so is a very serious error, and is sufficient to invalidate their own determinations along with the trial in progress.

All men stand equal before the law. That is the primary principle. When the appeal contains a request for review of a harsh sentence, the appeal court must not justify the sentence by stressing the public position of the defendant.

To do so is a clear indication that the appeal court has become confused and lost contact with the basic tenets of legal precedent. Students study their words with sadness, and a determination to right such wrongs whenever opportunity occurs.

Weary and suspicious

The defence, in asking for a review by the higher court, asks for no more than the application of legal principles to the objections raised in the trial court. It is the duty of the appeal court to examine each and every one of these objections, and render an opinion, backed by legal citation, that either upholds the trial judge or finds him in error.

It is a dereliction of duty to state that the trial judge has covered the point adequately, and therefore they need not rule again. It is again dereliction to state that they agree, without giving supporting precedent. The repetitious agreement soon sounds like rote parroting of a predetermined outcome, and the reader quickly grows weary, and suspicious, of such an opinion.

The appeal judges must reserve their final judgment for the end of their deliberation. To give a premature decision in the first few pages of their written opinion gives the public a queasy feeling that something is amiss, and renders all that follows a flavour of feathering and flowers.

Should the appeal judges reveal that they have personal knowledge of the defendant, and that this knowledge prejudices them in the application of the law, then they have transgressed the bounds of acceptable conduct, and their finding has no standing before the sharp eyes of the legal community and the world community. They have brought disgrace to their calling and their colleagues.

Stellar men

The appeal court judges protect the rights of all from malicious prosecution and improper execution of the law. This honourable office has been filled in the past by stellar men, giants in their lonely enclaves, and entitled to walk proudly down the streets of the world. For them we gladly stand aside, giving greeting in gratitude for their learning and integrity.

The honourable judge writes with clarity the final verdict of humanity. His words ring with truth. All who read the written opinion of a fine and noble judge are thereby uplifted, transformed by the knowledge that truth and justice are safe in his hands.

The appeal judge lives a lofty life, and to him we lift our hearts, recognising the risks and the dangers of his great office. In him we trust. He holds our future in his hands, and all the world watches how he harbours it.

HARUN RASHID is a scientist avidly interested in the application of Islamic principles in international affairs. The promotion of goodwill through civilisational dialogue motivates his writing. His Worldview column is a personal analysis of Malaysian affairs from a global perspective. [Worldview archives]