Common sense, common law and cow manure

Law reform is too serious a matter to be left to the legal profession.

– Leslie G Scarman, Law Lord, UK

It is onerous a task these days to decipher the arduous mental effort expended by those who labour on accepting the fact that the law is a living growth, not a changeless code.

The law, as it is proffered and explained while decisions and judgments are meted out from courts of law and equity, is in a state of vigorous vacillation between right, wrong, the acceptable, and the downright fatuous and puerile.

Consider the recent ruling of the Bombay High Court that pressing or groping a woman’s breasts without disrobing, and without skin-to-skin contact would only amount to molestation under the law, but not the more serious offense of “sexual assault” under another statute.

The offender was finally sentenced to one year imprisonment for “outraging the victim’s modesty.” Common sense bid farewell and common law laced with cow manure completed the show.

A few days ago, a former Malaysian attorney general (AG) reportedly wrote a book where he has exposed a whole lot of shenanigans behind the scenes before the PH government experienced gravity like Humpty Dumpty.

This former AG claims that the former prime minister, under whom he served, asked him to resign a day after appointment by the very man who had recommended him for the job. This former AG is reportedly a constitutional lawyer.

Under Article 145(1) FC, the Yang di-Pertuan Agong appoints an AG upon the (hopefully correct) advice of the prime minister.

So, if the prime minister asks a royal appointee to resign, shouldn’t he have referred the matter to His Majesty to seek consent and approval?

Again, common sense, common law and cow manure came to the fore claiming supremacy. The law has become asinine in our society with different standards for different folks.

President Theodore Roosevelt is said to have given his son advice on becoming a lawyer thus: “A man who never graduated from school might steal from a freight car. But a man who attends college and graduates as a lawyer might steal the whole railroad.”

Last week a Sarawak lawyer disagreed with my analysis of elections during an emergency in an article I penned for “Viewpoint”. I totally agree with his disagreement because this gentleman must obviously be non-cognisant of Article VIII MA63.

The law has always been a source of embarrassment, incredulity, and irritation for the public each time a public policy gains utterance like the Kedah mentri besar’s unilateral and arbitrary decision that Thaipusam is not to be deemed a public holy day.

The strength and seriousness of some of our laws are eminently and patently quite amusing.

The Malaysian Indecent Advertisement Act 1953 considers it an offence to advertise treatment for syphilis. Singing obscene songs in public can also land you in trouble under Section 294(b) of the Penal Code.

Under the Malaysian Minor Offences Act 1955, it is an offence to bathe your pet or an animal in a public place.

According to the Election Offences Act 1954, any person found guilty of accepting refreshments before, during, or after voting shall be punished with a maximum jail term of two years, a maximum fine of RM5,000, and a suspension of voting rights up to five years.

So, the taker gets slapped down, what about the giver? Cow manure, right, given our frog culture?

When you need to make a law to replace common sense, then you know the time has come for cow manure to seek refuge too in the sanctuary of the law. Such is the pathos.

More madness paid a visit when a lawyer filed suit against Satan, in Pennsylvania, for bringing untold problems to his client. The court ruled that the defendant did not reside in Pennsylvania, and thus struck off the complaint on a jurisdictional question! U.S. ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282, W.D. Pa. 1971.

In 1978, the lawyer representing a convicted murderer sued the state of Indiana for transfer to a women’s prison on the grounds that his client’s sentence of life imprisonment in an all-male prison was a “cruel and unusual punishment” under the 8th Amendment because it imposed upon him a lifetime of celibacy. Dodson v. State, 377 N.E. 2d 1365 (1978).

Litigants, if you’ll pardon the pun, the ball is in your court.

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