The language of the law

The strictest law sometimes becomes the severest injustice.

—  Benjamin Franklin, American Founding Father

The complicated case bias is a festering wound in the practice of law as is the solution bias. Charles Dickens believed that the great principle of English law is to make business for itself. All said, done and dusted, and truth be told, the law is in commerce, and it is commerce.

Judge Learned Hand famously declared that “the language of the law must not be foreign to the ears of those who are to obey it.” But the rule of lenity in crimes and punishments insist that legislative provisions favour the accused. If lawyers from both sides of the aisle botch it, the criminal walks.

Will Rogers realised that smart people nowadays are letting their lawyers, instead of the conscience, guide them. A smart lawyer knows how to manipulate the written law where an ambiguity should be interpreted in a way that makes it valid rather than invalid — the doctrine of ut magis valeat quam pereat.

Frederic Bastiat warned that “when plunder becomes a way of life for a group of men in a society, over the course they create for themselves a legal system that authorises it and a moral code that glorifies it.” This is an ugly truth in today’s politics the world over when moral codes are mercilessly buffeted in written laws and constitutions.

The language of the law is best expressed as an escape clause in a contractual provision that absolves one party to the contract of performance under specific conditions. An escape clause relieves one party of liability for non-performance if certain conditions are met. Insurance policies frequently contain escape clauses.

The indispensable clause “Subject to a builder’s inspection to purchaser’s full satisfaction” is one example of an escape clause. This clause effectively allows the purchaser to “escape” from the contract if an inspection reveals any irregularities or defects. Use the language of the law to its fullest.

The language of Article 48(6) of the Malaysian Federal Constitution (FC) has been rocked by misinterpretations and misrepresentations. It is impliedly saying that when MPs jump ship they have resigned from the Dewan Rakyat underscoring a moral dilemma.

Article 10(1)(c) FC does not confuse Article 48(6) in that it grants everyone, including MPs, the right to associate. The confusion can be cleared considering the impact of Article 10(2)(c) which grants Parliament at Article 48(6)
the power to pass laws to impose on the right to associate if it’s anathema to morality.

Jumping from your political party to another and betraying the trust of one’s political party and that of the voters surely is tantamount to dereliction of a moral calling. Here the language of Article 48(6) has succinctly covered all expediencies and contingencies expected of gutter politics.

The FC read holistically encompasses social, economic, cultural and political practices and processes where morality is not to be taken for granted even though each Article does not mention or demand morality and ethics.

Hopefully the forthcoming anti-hopping law will contain language that provides no escape clauses for those motivated by other persuasions to defy their political party’s allegiance and loyalty in both federal and state legislatures.

The language of section 263 of the Financial Services Act 2013 (Act 758), Regulations & Orders may create some discomfort, misunderstandings and misgivings where it grants the Minister the power and authority to exempt any particular person or any class, category or description of such persons, from all or any of the provisions of this Act for such duration as the Minister may deem fit.

The language of the law suffers fits and knots with the use of double negatives. A typical example: No amendment to this Agreement will be effective unless it is in writing and signed by or on behalf of each of the parties. That phrase could be worded thus: An amendment to this Agreement will be effective only if it is in writing and signed by or on behalf of each of the parties.

Double negatives used in statutes and drafting of legal briefs can be avoided with the urge and desire to use plain language. The scrivener mentality urges “in conjunction with” instead of ‘and.’ Excessive use of ‘without’ and ‘not’ is another vexatious slaughter of plain language.

Paraphrasing Jonathan Swift, laws are like cobwebs that catch small flies but let hornets and wasps break through, no thanks to the vagaries of the language of the law.

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

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