“The law may sometimes be an ass, but it cannot be so asinine at that.”
– Lord Reid, British jurist
LORD Reid broke new ground with the pristine disinfectant of sunlight when he wrote for all posterity that remarkable statement in Haughton v. Smith [1975] AC 476 at 500. Hopefully, lawmakers will not stray into the thickets and brambles of political uncertainty and legal vanity.
Damnum absque injuria is the craftiest and wisest exit strategy for those in power, and for the powerless, too. It’s Latin for loss without wrong. It’s a loss suffered by a party for which the law provides no means of recovery.
It refers to a situation where someone suffers damage or loss, but the person causing the harm hasn’t violated any legal duty or right, meaning there’s no legal basis for an award of damages.
So, what happens when Parliament makes a law that is responsible for someone suffering damage or loss, but that particular law was not intended to violate any legal duty or right although it has breached and violated a moral duty or obligation?
Moral duties and obligations from natural law is cleverly subsumed with legal ramifications created by positivist (man-made) laws. This is where the administration of law and justice gets tricky and treacherous.
Lim Hang Seoh v PP (1978) 1 MLJ, records a 14-year-old sentenced to death for possession of a pistol. The Juvenile Act 1947 did not matter. His middle name had nothing to do with his sentence.
One of the Latin maxims of law appallingly claims in commercio licet decipere – deception is permitted, or lawful, in trade! Buyer beware (caveat emptor) because if you drop your guard and get cheated, you have no legal remedies.
But the buyer who unknowingly got cheated may find comfort in the Latin maxim fraus et dolus nemini patrocinari debent – fraud and deceit should protect no one. Lord Reid made the point.
Law with its flaws has many claws that are ready to tear at the fabric of normalcy and urgency in a litigious society where sue and be sued are bywords.
Is justice in a court of equity available in Malaysia? Every case is based on positivist law. Higher morals and natural law may be found in sharia and ecclesiastical courts if freedom of religion means anything.
But religious laws are also subject to control by positivist law manipulation.
The presumption of innocence is virtually non-existent in Malaysian criminal law. The applicable Latin maxim calls for benevolent or humane interpretation of the law that is meant to blunt the strict statute – in criminalibus humanior interpretation accipenda est.
That exit strategy doesn’t exist because one is guilty until proven innocent. The right to a lawyer commences immediately after arrest – Ramli bin Salleh v Inspector Yahya bin Hashim (1973) 1 MLJ 54. This right is painfully absent in our system of governance.
Lord Reid knew what he was talking about the law willing, wanting, wishing and waiting to be asinine. Legal construction inflicts no wrong expressed in Latin as constructio legis non facit injuriam. Standing joke.
When a trial court puts a certain construction upon an Act of Parliament, the common law menace rears its hideous head. If that construction is wrong, then the litigant has to wait for a superior court to set aside the first decision.
Imperium mixtum – judicial authority – is entrenched in Article 162(6) of the Federal Constitution that guarantees judicial independence and immunity in their decision-making process.
Malaysian judges will do supreme justice if and when Article 162(6) is courageously used in every civil, constitutional and criminal case.
Many things have been introduced into the common law for the sake of public convenience which are inconsistent with sound reason that cannot be logically defended, expressed in Latin – multa in jure communi contra rationem disputandi pro communi utililitate introducta sunt.
The lawmakers in Parliament and the law fixers in the Judiciary must equally share the blame for laws that cause law and justice to operate at cross-purposes in a bewildered society. Lord Reid stayed focused.
It’s doubtful if one generation can fix the asinine laws that plague our lives and livelihoods. Maybe the Law Reform Ministry needs to be “doged”, or dodged, even being that it’s not dogged enough to institute reforms.
There is nagging doubt and uncertainty whether elected judges, including the Attorney General, would make a difference for a genuinely independent judiciary and an awakened society.
If the electors can vote in their potential prime minister, why aren’t they qualified to select and elect eminent legal scholars and experienced lawyers as judges? Isn’t this asinine?
The Bar and Bench in Malaysia have been champions and vanguards to maintain an independent judiciary since 1988, but are they winning in championing the cause of justice at the expense of public policy that favors the elite?
Absent an independent judiciary, favourable exit/escape strategies in the law grant great latitude to the appointed Attorney General under Article 145 Federal Constitution. But is this power subject to Executive nod and wink to continue or discontinue criminal proceedings?
G.K. Chesterton captured the dilemma: “We don’t need good laws to restrain bad people. We need good people to restrain us from bad laws.”
Are the relevant ministries listening? Or is the Orwellian Ministry of Truth operating and functioning subtly and silently to the utter detriment of the electorate?
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
