The law: Faces and paces

Any one of the strange laws we suffer is a compromise between a fad and a vested interest.– Gilbert K. Chesterton

The Latin phrase “communis error facit jus” means “common error makes law” in English. This legal principle suggests that if there is a widespread or common misunderstanding or error regarding a particular legal matter, it may be treated as if it were the law, even if it contradicts established legal principles!

It cannot get crazier than this. But many legal maxims and doctrines face strict judicial scrutiny when the “Golden Rule” of statutory interpretation, for example, clears the air when the plain or ordinary meaning can lead to absurd outcomes. Legislators beware!

The law faced opposition when equity stared down at it. Equity was designed to smoothen out the harshness of the law. So said the experts with a moralistic perspective. But law and morals in the same sentence can be uncomfortable.

Sir William Blackstone: “The law without equity, though hard and disagreeable is much more desirable for the public good than equity without the law, which would make every judge a legislator and introduce most infinite confusion as there would be almost as many different rules of action laid down in our courts as there are differences of capacity and sentiment in the human mind.”

So, Blackstone was not a supporter of judicial activism where the independence of the judiciary was restricted and constrained not by law or constitutional fiat, but by naked politics. No fig leaf is available, nor is one allowed. The judiciary must take the bull by its horns, or experience the horns of a dilemma.

“Independence of the judiciary” and “the separation of powers” between the executive, legislature and the judiciary are all fine concepts and ideals in a democracy, but the extreme law of the land – politics – defines everything. The written constitution steps back and stares in awe and anguish.

A very awakened legal mind suggested that “these days, we don’t really have laws anymore; just a system of words available for judicial interpretation, and reinterpretation, to allow judges to adapt the law to fit their perceived need at the time of interpretation: in short, a rule of persons, not of laws.”

So, in essence tikkun olam (repairing the world) through readjusting, reshuffling and reshaping justice does very little to change the status quo. The masses are lulled into accepting inflation, chronic unemployment, bigotry, bias and other social ills for which the laws stand idle and impotent.

In February 2021, the Malaysian Federal Court had to decide whether a news outlet was guilty of ‘demeaning attacks on the judiciary, had threatened public confidence in the judiciary and was clearly aimed at tarnishing the administration of justice by the judiciary.” So said, the then Attorney General.

One judge dissented; the news outlet was heavily fined; but the editor-in-chief was found and declared not guilty. The sympathetic public raised the fine money in record time. Bear in mind there are serious issues of freedom of speech involved in such cases. The Federal Constitution should not become a buffer zone of neutrality!

But was this news outlet case affected by the 2019 affidavit filed by a Court of Appeal judge who claimed that widespread judicial misconduct was left un-investigated? The internal Judges Ethics Committee suspended the judge until retirement, according to sources. Is this justice facing law and equity in a three-cornered fight?

By the way, an affidavit is a sworn statement declared under penalty of perjury. When a sitting judge issues one, all hell must break loose.

Malaysia has had a long tradition of judges being appointed by the Executive who himself won an election. Legislators, too, have to win elections. But judges don’t! And yet every talking head nods in agreement that we have an independent judiciary. Do we?

A loaded question would be whether our law and justice system will improve and increase in efficiency if and when judges are elected by the popular vote. Those seeking such elections need not necessarily be senior lawyers, but men and women of rare and superior intellects.

Some have frowned at the thought of people not trained in the law becoming judges. The almighty United States has appointed judges to its Supreme Court with men who were not lawyers – Justice Stanley Reed and Justice Robert Jackson, for example.

Meanwhile, back at the ranch. Will elected judges render better justice with a devil-may-care-attitude towards Executive overreach as in 1988? Can elected judges be truly independent? Do we need to amend the Federal Constitution for the separation of powers and the independence of the judiciary to be clearly enumerated?

Thomas Hobbes said “the law is public conscience.” The late great Justice Eusoffe Abdoolcader said that” the public good is the supreme law”. Therefore, what can go wrong if the public demands that its judges win elections? One argument says the public has elected many politicians who were found to be crooked and corrupt!

This is a perfect antinomy – a contradiction between two beliefs or conclusions that are in themselves reasonable; a paradox. The Americans say “damned if we did, and damned if we didn’t”. So, should we or shouldn’t we be electing our judges?

We do nothing when legal positivism (man-made law) threatens Natural Law and freedom of religion enshrined in the supreme law of the land.

The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune.