When the magistrates’ or Sessions Court wrongly decides and orders you to pay the other party RM9,500 after a civil case, Malaysian law currently says the dissatisfied party cannot appeal to the High Court, because it is less than RM10,000.
This is very wrong, unjust and possibly also discriminatory.
Magistrates or Sessions Court judges can and do make mistakes, and on appeal, the High Court can correct mistakes and overturn judgments to ensure justice is done. Likewise, an appeal to the Court of Appeal can overturn wrong decisions made by the High Court.
To ensure no miscarriage of justice, in Malaysia there is the right to two appeals. So, why is the right of appeal denied to some cases simply on the basis of the value of the claim or subject matter?
One must appreciate the fact that many lower court judgments are overturned or corrected on appeal, and as such, the denial of the right to appeal to the High Court may lead to a miscarriage of justice.
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Sadly, many may not notice this unjust provision in our law. Section 28(1) of the Court of Judicature Act 1964, as it is now, states:
(1) Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject-matter is ten thousand ringgit or less except on a question of law.
However, the opportunity for Parliament to correct this injustice opened up when the Court of Judicature (Amendment) Bill 2022, which replaces the old Section 28(1) with a new Section 28(1), still retains this denial of the right of appeal to the High Court in the proposed new Section 28(1)(a):
…decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on a question of law…
Parliamentarians could have objected to and deleted this proposed Section 28(1)(a).
But sadly, our MPs, who get a monthly allowance of RM16,000 at least, failed to do what was needed to end this injustice, and ensure that irrespective of the value of claims, including smaller claims by possibly ordinary people, all litigants are accorded the same rights as those litigants of bigger-value claims, including the right to two appeals.
The bill came up for first reading on 19 July and was passed at the House of Representatives on 25 July.
For many people, including the poor – Malaysia’s minimum wage is RM1,500 – sums of RM1,000, RM5,000 and RM9,000 are big money. Being ordered wrongly to pay such sums or being wrongly denied the claim by the court is a big deal.
The deprivation of the right to appeal to the High Court, dangerously, can lead to a furtherance of injustice or violation of rights.
The very reason for courts is to prevent the use of self-help, which may include violence and other wrong acts, to get back money owed and settle other disputes.
As the law stands now, it deters the use of courts to settle disputes where the subject matter amounts to less that RM10,000 – as there is no appeal even if the magistrate or Session Court judge makes a serious mistake or wrong decision in the view of one party to the action.
There is really no rationale for such discrimination simply due to the monetary value of the claim or the value of subject matter. Big or small cases, irrespective of the value of the claim or subject matter, ought to be treated the same, including the right of appeal.
Malaysians Against Death Penalty and Torture (Madpet) calls for the repeal of Section 28(1) of the Court of Judicature Act to end the discrimination on the basis of value of the subject matter of the claims.
Madpet also calls for an amendment to the Court of Judicature (Amendment) Bill 2022 to delete the proposed new Section 28(1)(a).
Access to courts must be encouraged, irrespective of the size or value of the subject matter. As such, even the high cost ordered by courts for applications and appeals must be minimised so as not to end up discouraging ordinary or poorer persons from using the courts to resolve disputes peacefully.
Litigants, when they do bring their disputes to courts, already incur a lot of costs – money, time and effort – and let’s not make the judge-ordered costs for unsuccessful applications or appeals deter the parties in their quest for justice.
The courts are for all – the poor and the rich, for big and small claims. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)