JANUS-FACED JURISRUDENCE

Law is not the handmaiden of justice, but its hangman – Native American jurist

[1] The Native Americans, the First Nations of Africa, Asia, Canada, Australia, New Zealand and the South Pacific Island Nations literally lost all their lands to laws made by European explorers, conquerors and settlers who came simply to take others’ assets. The epithet Took-Took Tribe fits. They took everything. “Land titles” envisaged by the Europeans is a symbol of jejune jurisprudence. Jigsaw jurisprudence, on the other hand, precisely and objectively carves and creates customary land law under the tenets of Natural Law.

[2] In England the right to sit in Parliament and even the right to vote were, until comparatively recently, restricted to landholding classes. Early America demanded the same privilege. But whose land were they owning by discovery and conquest as was their “manifest destiny,” a clever and lethal expression coined by newspaperman John O’ Sullivan in 1845 who wrote volumes to justify legalized land grabbing under laws passed by the usurper European.

[3] Ultimately, law courts were established by European law – read: persuasion. British colonies offered the perfect fertile soil for their experiments and experiences in jejune jurisprudence, Fortuitously adat had its way, its say. and held its sway, too. Judicial decisions in early Malaya acknowledged and approved Adat Perpatih and Adat Temenggong that served as jigsaw jurisprudence in land-related disputes and jointly owned property (harta sepencarian). Today, it’s not even a whisper or a whimper in our courts except in shackled and fettered Sharia Courts.

[4] As time rolled along, the Civil Law Act 1956 (Revised 1972) came into being. Section 3(1)(c) is the jigsaw jurisprudence where precision was shaped out : “Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.”

[5] Despite this clear, cogent and concise provision in Section 3(1)(c), English common law has succeeded in shoving aside “local circumstances” with its weird sense of jejune jurisprudence that enjoys permanence in our law journals. Inhabitants don’t matter until the general elections where promises and assurances are made to satisfy the ambitions and aspirations of fast-talking candidates who paid their deposits to the Election Commission.

[6] The one area of intense interest and feverish focus to the sustenance of jigsaw jurisprudence is the Royal Pardon as enunciated in Article 42 (Power of pardon, etc.) of the Federal Constitution in its inherent capacity as the supreme law of the land. Its 13 sub-sections do not fetter or shackle the power of pardon except the word “preside” in section 8 that seems to be at odds with “mempengurusikan” (chairing a meeting). “Presiding” is a higher calling than “chairing” that seems to be overlooked or ignored by politicizing law, justice, and jurisprudence.

[7] In essence, imported common law says punish while adat rightly and rightfully claims pre-eminence and prominence to forgive convicted criminals. Somewhere between the cracks, complete erasure and sentence reduction suddenly take centre stage when grappling with Royal pardons. Executive authority vested in the Yang di-Pertuan Agong is unambiguous in Article 32 right up to Article 42, and Article 150 (Proclamation of emergency) of the Federal Constitution. So, why split hairs?

[8] Article 8(2) Federal Constitution, for example, evidences Janus-faced jejune jurisprudence as it proclaims that discrimination can be authorized by the supreme law of the land. Providentially, jigsaw jurisprudence is loud and clear in Article 182(7) (Special Court) Federal Constitution. Sort of a check and balance to put the Civil Law Act 1956 on notice as well while preserving and promoting social justice.

[7] The “rule of law” is a sinister phrase when you engage semantics and linguistics. The law of rules is very different from the rule of law when it is actually a system of rule by law evidenced in Article 145(3) Federal Constitution where the Attorney General and the Public Prosecutor are twinned as one entity. That is in-my-face jejune jurisprudence.

[8] Fortunately, the Attorney General is not immune from civil suit if indeed he or she engaged in fiwah – an acronym I coined for false imprisonment, wrongful arrest and harassment. The Attorney General is primarily engaged in criminal proceedings, not in initiating or discontinuing civil suits. You can encounter a paradox in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia, & Ors, (2020) when the Federal Court Coram of seven judges exonerated Sundra Rajoo from criminal proceedings because of his standing as a “High Officer” enjoying diplomatic immunity whose charge of personal gain had no merit in the eyes of the Federal Court.

[9] Contrast Sundra Rajoo with the immunity invoked by the Attorney General where no such immunity is evocable or available when malicious prosecution in his civil capacity is the key issue before a court of law – or, in a court of justice? Do you listen to case law or moral persuasions inspired by a higher calling? Weaponizing and politicizing justice is the sine qua non of fascism, not in a social democracy.

[10] Didn’t Najib Razak, as a sitting prime minister, not enjoy diplomatic immunity like Sundra Rajoo if he could have evidenced no personal gain from 1MDB particularly, and especially, without the intrepid and deliberate fugitive Jho Low’s crucial testimony? What about the testimonial of the Royal Addendum? We cannot and should not entertain or enter a jurisprudence of doubt when an Article 162(6)(7) Federal Constitution court of law casts a Nelson’s eye, or worse, turn a blind eye to the facts and to the supreme law of the land.

[11] Weirdly, Article 160 (Interpretation) Federal Constitution defines “office of profit” to include the office of any judge in of the Federal Court, of the Court of Appeal or of a High Court.” Why not office of public trust? Curiously, Article 160 does not include the civil service, Parliament, PDRM, the Armed Forces, the office of the Attorney General, or all other government agencies!!

[10] Do judges persuasively look at the law, facts and evidence objectively, subjectively, purposefully, morally or philosophically to jettison the moniker Janus-faced jurisprudence? Maybe they arrive at their decision and judgments from all five persuasions. Nothing to do with their education, training and experience. Is there a template? Do they consult ChatGPT? Heaven forbid!

[11] If we are to function as a nation that watches over social democracy as social justice, we will succeed economically and politically. But we are doomed when we weaponize the law, politicize the rule of law, and terrorize the role of justice. Will the introduction Jurisprudence as part of the STEM subjects today help the future generation of leaders since justice was one of the greatest of human creations?

[12] Justice jurisprudence and law are trapped in the web of ontology (things as they are), stuck on the quagmire of epistemology (distinction between justified belief and opinion), and caught in the crosshairs of phenomenology (how we handle personal experiences). This befuddles the truth. It’s almost like a hundred answers to a problem which means there are no answers. This is a tragedy for justice, a parody for jurisprudence, and an unholy comedy of errors.