Te whetu Orongo

Justice that love gives is a surrender; justice that law gives is a punishment.

– Mohandas K Gandhi, lawyer, and Indian freedom fighter

“Law and justice are two distant cousins who are not on speaking terms,” said the character of Marlon Brando in the 1989 movie ‘A Dry White Season’, showcasing apartheid in South Africa.

That was when I began to think very differently, clearly and consciously with Brando’s outburst seeping and permeating into my lawyerly skills.

One wonders whether lawmakers agree to vote for any piece of legislation based on party affiliations and loyalties, or whether they want to see law and justice taking centre stage.

The law made by lawmakers has nothing to do with fairness and impartiality, or “justice.” Lawyers and judges slug it out in a court of law where law and justice wait to be summoned.

“Do justice, do justice,” shouted one judge to another great judge who replied, “ I can only apply the law.” They have become distant cousins who hardly ever speak to one another.

Jocularly, an Afghan Minister of Maritime Law while visiting another country was asked by the airport immigration officer how a landlocked country could have a maritime affairs minister. The nonchalant reply, “Ah, but you have a minister for law and justice in your country, right?”

It has been said that “law without justice is a wound without a cure.” Many laws passed in legislatures around the world fester as open wounds where justice, ultimately, becomes gangrenous.

“At his best, man is the noblest of all animals; separated from law and justice he is the worst,” said Aristotle. Therefore, bad court decisions suffering even on appeal can be inhuman.

“Never mistake law for justice. Justice is an ideal, and law is a tool,” observed Le Modesitt, Jr. I presume it is safe to say that justice is in the spiritual realms while law, as a bludgeon, languishes in the physical waiting for a knee on an unwilling neck.

Law and justice pretend to co-habit in written constitutions where fundamental liberties are enumerated but not guaranteed with many actually trusting its intent, content and extent until disappointments visit in a court of law.

Some countries have the rights to freedom of speech and the press in their written constitutions, while countervailing laws operate to pounce on anyone allegedly overreaching these freedoms.

Draconian laws must be met with robust and vigorous applications of justice when a judge and jury play decisive roles. But in countries lacking a jury system one cannot help wondering if a single judge or a full appellate Bench of seven or eleven judges would unanimously deliver justice under law.

I believe law and justice will get on speaking terms when appellate judges put their shoulders to the grindstone to render unanimous decisions. Majority decisions are always suspect. I find dissents most enlightening as continuing legal education.

Justice delayed is justice denied, and justice hurried is justice buried. Malaysian lawyers and courageous judges can and should play a pivotal role in bringing law and justice to live under the same roof.

Law and justice sneak away from each other back to the distant cousins mindsets when there is clamor for an independent judiciary. Law reformers must create a tsunami of discontent over this issue.

Law and justice should not simply become a distant constellation of principles where it becomes a collection of contrasting arguments waiting to be used for a controversy, conflict and debate — nothing more, nothing less.

State legislation and federal legislation in Malaysia are often like our two distant cousins seldom on speaking terms. Each vies for supremacy in a limited context waiting to be set right in a court of law instead of Parliament.

Admittedly, English common law has brought some flexibility to our legal system.

Section 3 of the Civil Law Act 1956 offers Malaysian judges the option of allowing or denying English common law’s applicability depending on local circumstances.

Our local distant cousins may come to terms if our judges are elected by the voting public instead of being constitutionally stigmatised by executive appointment cast in stone, as it were, by a distant constitution-drafting coloniser who never clamoured for a written constitution in his own land.

As Earl Warren, a former chief justice of the United States Supreme Court declared, “It’s the spirit and not the form of law that keeps justice alive.” Form over substance can keep the two cousins perpetually distant.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.