|
The appeal
06/03/2007 The Star ARTICLES OF LAW By BHAG SINGH
What happens when you are unhappy with a court’s decision? You can appeal.
WHEN a person is dissatisfied with a decision that concerns him, he can
challenge it. The nature of the challenge depends on whether it is an
administrative or a judicial decision.
The normal reaction is to say that the party that feels dissatisfied can
appeal. At this stage, this party is bound to be relieved that there is
still hope that the outcome may yet be different.
The general option to appeal always exists, whether the decision is made in
the context of a social relationship or an administrative decision, or in
the context of a judicial or other decision-making process.
Thus, a child may appeal to a parent’s reluctance to allow him to go on a
hill-climbing expedition. On the other hand, an employee said to have
committed gross misconduct may appeal to the employer not to demote or
dismiss him. Here, there are no legal rights.
However, when and where decisions are made which are of an official
administrative nature, or other decisions are made in the context of
judicial or quasi judicial proceedings, the law offers a measure of
protection.
In the case of the courts, there exists a right to appeal against a decision
to the next level in the judicial hierarchy. Such a right serves more than
one purpose and is part of the framework to ensure justice is done.
A right of appeal creates a mechanism whereby an incorrect decision can be
reviewed and corrected by a more superior court. At the same time, the lower
court reminded that its decisions are subject to scrutiny.
The “correct” decision is not always as definite as it may appear to be at
the outset because a decision made on similar facts 10 years earlier may not
necessarily be the same 10 years later.
A “correct” decision also does not mean that the decision will remain
unchanged for all time. It is possible that the law on which the decision
was made may have changed. On other occasions, the difference may be
attributed to public policy or a change in judicial temperament or
philosophy on the part of the judiciary. Public perception of what is
acceptable, or not, can also affect decisions made.
Though the word “appeal” is used in a general sense to refer to a challenge
taken up against an administrative or judicial decision, the word is also
used in a technical sense, in contrast to what would more appropriately be
referred to as “judicial review”.
In the former case, a higher court appealed to will examine all the evidence
that has been made available to the court below it and determine whether the
latter’s decision is correct. If so, the decision will be affirmed.
Otherwise, the higher court will reverse the decision, substitute its own
decision, or order the matter to be retried.
Such an appeal comes about because one party files and pursues it. Of
course, where no appeal has been filed, the higher court can intervene
through its revisionary and supervisory powers to ensure justice.
However, when a party is dissatisfied with the decision of an administrative
or quasi judicial body that is not part of the judicial hierarchy, then,
strictly speaking, it has to resort to the judicial review.
In this case, the court reviews the decisions to ensure that it has been
made in accordance with the law. If the legal requirements and procedures
have been complied with, the court may not interfere. It will allow the
decision to stand.
However, if the decision does not meet these requirements, then it will be
quashed and the matter will go back to the person, body or tribunal that
made the decision.
Decisions can be quashed if the prescribed procedures have not been adhered
to. This can also include breaches of either or both of the two principles
of natural justice, which are that a man has the right to be heard and that
he must not be a judge in his own cause. The other is that justice must not
only be done, but also be seen to be done.
When this happens, the court makes a decision to the effect that the
decision challenged is either wrong or, for other reasons, cannot be upheld.
It does not decide what the correct decisions on the facts should be.
In setting aside the decision made, the court is empowered to give
directions. These could either be indicative of the wrong manner in which
the law had been interpreted, or be to the effect that a different person
should deliberate and adjudicate on the matter where appropriate.
In cases where a party was not satisfied with the decision of an arbitrator,
decisions have been quashed because of the arbitrator’s misconduct.
Misconduct here has a broad meaning and refers not only to moral misconduct
but also misinterpretation of the law.
In such cases, the approach for the court has been to quash the decision in
part, or in whole, and remit it to the arbitrator to reconsider the
position, in light of what the court has said. However, where the misconduct
was of a moral character, courts are known to have ordered the matter to be
heard by a different arbitrator.
It will therefore be noted that the appeal refers to different approaches
that are available to a person dissatisfied with a decision and the
qualification that exists to limit the right to appeal. |
