"The law may sometimes be an ass, but it cannot be so asinine at that".
The supreme law of the land is matched by the extreme law of the land as promulgated by Parliament. One must wonder whether elected officials in their capacities as Members of Parliament really conceive and conceptualize written laws, or if this is the brainchild of their draftspersons who are tasked with writing and drafting legislation complete with double negatives and wanton ambiguities. The United Kingdom Equality Act 2010 evidenced an inadvertent omission by the drafters causing distress and white knuckles in the Employment Appeal Tribunal. A blatant draftsman’s error in Malaysia’s land law that was exploited by unscrupulous individuals for false property transfers (Adorna Properties) was eventually overturned by the Federal Court in 2010. Australian Tax Laws have also witnessed serious drafting errors as in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation. Clearly, MPs were distracted. Drafting errors are inevitable when proofreading is not welcome and unnecessary but left to the judiciary.
Malaysia’s Madani government has been the wearing fig leaf of ugly justice to hide their naked ambitions that suffocate the truth. There is a heinous exit strategy called Discharge Not Amounting to Acquittal (“DNAA”) as entombed in Section 254 of the Criminal Procedure Code. Mind you this is merely procedural not substantive as contained in the Penal Code. DNAA allows temporary suspension of proceedings for reasons like incomplete evidence, though it is often highly controversial, especially in high-profile case involving politicians with low levels of integrity.
The DNAA power emanates from the power and authority of the Attorney General under Article 145(3) of the Federal Constitution. But that power is curtailed when it comes to discontinuing proceedings in Native courts, Sharia courts or the Armed Forces courts martial. Therefore, there is some semblance of checks and balances. Having said that, there is no Office of the Public Defender like the ubiquitous Office of the Public Prosecutor. Legal Aid Bureaus are never the answer until the public comes out gung ho to support the NGO Office of the Public Defender.
The law says that a person charged with a crime is innocent till proven guilty. But in practice, you are guilty until proven innocent while you sweat it out in orange attire with the word LOKAP loudly emblazoned. Any offence that is pronounced non-bailable is obviously useful to the prosecution granting the defence counsel an inevitable Sisyphusian task.
There was a time when Malaysia enacted the infamous Danaharta Act 1998 (Pengurusan Danaharta Nasional Berhad Act 1988) that enjoyed immunity from judicial review! Section 72 of the Act explicitly prohibited courts from granting injunctive relief against Danaharta thus denying litigants the right to obtain a fair remedy. This sentiment was echoed by the Court of Appeal in the case of Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd in 2003. That joy was short-lived when the Federal Court castrated judicial power in deference to parliamentary supremacy in a sole written judgment by Judge Augustine Paul. Danaharta successfully completed its mandate and stopped receiving new accounts or engaging in NPL acquisition activities in December 2005. But that should mean overturning and vacating Augustine Paul’s obvious addiction to Machiavellian tactics and techniques.
In 1988, Malaysia was in the grips of draconian power in the hands of the then prime minister who was allegedly addicted to Machiavellian ideas of governing, governance and government. The Internet and social media during that period was but a twinkle in the eyes of the minds of futurists. Had it been alive and well during that era, thousands would be swept up in a dastardly Ops Lalang time warp with new prisons being built in a hurry to house the bloodhounds who believed then and still believe that the truth needs no marketing strategy, plans or salespeople. Malaysians have always viewed the dreaded era 1981-2003 as one fraught with Orwellian nightmares as espoused in the seminal book “1984.”
Malaysia’s current politics is invariably centred around race, region and religion – the 3R of our way of life. There is no escape from this sociopolitical conatus despite the crushing weight of desperation to look beyond race, region and religion. It continues as a form of psychological genocide with no hope, remedies or solutions. The New Economic Policy helps only one dominant race and nobody is allowed to question it. But discussing and rationalizing it should receive the protection of Section 3 of the Sedition Act where pointing out defects in government, law or politics are not deemed sedition. However, Section 3(3) was declared unconstitutional by the Court of Appeal in November 2106 when the Act stipulated that intention was irrelevant. The Sedition Act 1948 enacted by colonial Britain during the Malayan Emergency is still hovering around our consciousness and consciences like a bee in the bonnet.
The recent Sabah elections evidenced a seismic shift for Sabah and Sabahans who are now destined to follow a totally different trajectory with minimal federal intercession. The results devastated the DAP but brought Warisan to the forefront as a worthy contender. But the writing is on the wall for scathing political events to unfold before GE-16. Reform and change have morphed into a cliché these days. The Reformasi movement of 1998 is a monument for a sad memory.
For questions, inquiries and/or feedback, please contact Judge Naidu directly at: chiefjudge@secamtektektribe.org