The criminal law is no use to decent people.
– George Bernard Shaw, Irish playwright
A code is universally known as “a system of words, letters, figures, or symbols used to represent others, especially for the purposes of secrecy”. Going by this definition, the United States Code, Malaysia’s Criminal Procedure Code and Penal Code obviously advocates a purpose of secrecy requiring the deciphering of deception and subterfuge.
Criminal justice systems court immaturity with words and phrases that create confusion, alarm and distress. A statutorily created criminal code becomes an atom splitting quixotic adventure akin to operating on a unicellular amoeba in an effort to find its internal organs!
German philosopher Frederick Nietzsche said that the purpose of criminal law is to punish the enemies of those in power. This uncanny observation makes perfect sense knowing that those in power get to make the laws, specially honed and perfected to criminalise dissent or criticism with the participation of a pliant judiciary.
In America today, public worship outside an abortion clinic will get you into hot-soup. The supreme law of the land now criminalizes your right to exercise freedom of religion. Only in America?
The code becomes so fudged that it compels a presiding judge to find the line of least resistance by declaring the law with total disregard for the facts. Saw Kim Hai & Anor v PP (1956) MLJ 21 is the undisputed champion in our case law annals where the court said that it is settled law that an accused person can be tried even if the arrest is illegal!
Whatever law was invoked was totally shrouded in a code for a 1956 presiding judge to seek safe haven behind the “settled law haven” because there was no written constitution as yet until the following year when the Reid Commission completed its assigned tasks.
The Federal Constitution (FC) is very clear at Art. 5(3) that an arrested person has a right to counsel before police interrogations begin: Ramli bin Salleh v Inspector Yahya bin Hashim (1973) 1 MLJ 54. This, inevitably, will include a prima facie inquiry by counsel of choice into whether the arrest was legal. Sadly, Saw Kim Hai could not remember the future to come that would have exonerated him.
Lawyers, judges and witnesses stretch the facts to infinite limits in every civil and criminal case with nary a thought for relevance in order to fit them into the code. None is qualified to decipher the code because the legislator is never present in court to verify or clarify the legislature’s intention(s). The unlucky get their punishment based on an undecipherable code and that’s the end of it. Commerce as usual with lawyers’ fees and court costs settled.
There was unmistakably an undeciphered and undecipherable code that imposed the death penalty on a 14-year-old for possession of a pistol and ammunition in Lim Hang Seoh v PP (1978) 1 MLJ 66. The Federal Court invoked rule 3 of the Essential (Security Cases) Regulation 1975 which declared that the death penalty is the only sentence available. Section 3 of the Juvenile Act 1947, which would have rendered reprieve and respite of sorts, was ignored, if not tossed aside.
Lim Hang Seoh was hanged. Eleven years later it was decided that when there is a conflict between the provisions of an Act and Rules the Act must prevail – Wee Chow Yong t/a Vienna Music Centre v Public Finance Bhd (1989) 3 MLJ 508.
The wretched irony is unmistakable when the court in 1978 was of a different mindset than the court in 1989. The 1978 court did not care to distinguish and differentiate between a Rule and an Act of Parliament. No recorded wrongful death petition was ever filed to vindicate Lim Hang Seoh.
If law reform means anything, we must rewrite these criminal codes, and here I use the word ‘criminal’ as a deliberate adjective. We ought to simplify them with constitutional foresight, forte and fortitude. Laws passed without constitutional consultation between the legislature and the judiciary are selfishly political.
The Client’s Charter of the Prosecution Division of the Attorney General’s Chambers and the United Nations ‘Guidelines of the Role of Prosecutions’ adopted by Malaysia in 1990 does not seem to improve our criminal justice system.
“Every time the cradle of justice becomes criminal, it falls upon us civilians to be justice incorruptible,” warned Indian author Abhijit Naskar, as a wake-up call to the voters.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
