Justice wears a crumpled suit

You pay a down payment for a piece of property. A few weeks later, an ugly hidden truth surfaces and you decide to rescind the agreement. The seller refuses. He claims you are not entitled to a refund of the down payment as it is one of the clauses in the agreement.

In come the lawyers plus guaranteed aggravation threatening to favour all parties. The judge swiftly and safely sticks to that clause in the agreement that says you are not entitled to a refund although you are armed with recently acquired evidence concerning the property. Ultimately, your down payment is history. The law wins. Justice exits. Frustration fans the flames of your reigning rage.

Crumpled justice with no concern for altered circumstances that make the contract impossible to be consummated (clausua rebus sic stantibus), or that the maker of the contract is responsible for repairing ambiguous terms that impede the enforcement of the contract (the contra proferentum rule).

Article 13(1) (Rights to property) in the Federal Constitution (FC) says that “no person shall be deprived of property save in accordance with law.” This was upheld in Kerajaan Negeri Selangor v Sagong Tasi [2005] 6 MLJ 289, a land matter that favoured Orang Asli plaintiffs. Justice happened with vigour. Law obeyed without a whimper.

Reid Commission’s oversight for “no person shall be deprived of property save in accordance with the rule and role of justice as prescribed and extracted from applicable law(s).”? Providentially Art.162(6) FC provides for retrofitting.

Justice looks awkward and petulant watching the law as an inappropriate tool that was fashioned on the anvil of self-interests in the legislature. Extracting and evoking justice escalates to a joust with a prickly law festooned with thorns all over. The judge is said to be activist or a conformist depending on the retrofitting tools.

“Whoever undertakes to set himself up as judge in the field of truth and knowledge is shipwrecked by the laughter of the Gods,” noted Albert Einstein. Mankind evokes comic cosmic concerts without a concerted effort to develop, hone and articulate some semblance of justice no matter how many hats are worn.

Many are paralysed with the inability to develop a sense of justice when man-made laws cripple them with doubts, uncertainties, fears and inconsistencies. Citing and quoting precedents however insipid, intrepid, cupid or stupid seem to be the only way to win. Cut and paste to fit, not retrofit.

“Honest people, mistakenly believing in the justice of their cause, are led to support injustice,” remarked American lawyer Elihu Root. Here he refers to the biased and acrimonious law that confuses, befuddles, bedazzles, misleads and prepares the litigant for the slaughterhouse.

French mathematician Blaise Pascal noted that “justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.” Governments and politicians are in danger of succeeding and being prosperous if and when they use this adage as their national mottos and ethos.

Should justice have a grading system, a rubric, to assess and grade its performance in a system where everything is eligible to be corrupted and corruptible?

In 2010, the European Commission for the Efficiency of Justice prepared a Report from 31 OECD nations to asses, evaluate and grade justice as dispensed by their judiciaries. The Report studied external factors like cultural traits, structural characteristics, business cycles, the quality and quantity of legislation. Internal factors included the costs of accessing legal services, incentives that apply to lawyers and the increasing need of ADR (alternative dispute resolution).

Underlying all this, according to the authors of the Paper was “the degree of certainty of the law, as influenced by the ability of the judiciary to guarantee uniformity in the interpretation and application of the law, making recourse to the legal systems.” The study ultimately viewed justice through the lens of the law using the national economies as the yardstick. The rubric seemed a failure.

Is justice served when the rights of the majority are protected and preserved at the expense of the rights of the minority? “The cry of the poor is not always just, but if you don’t listen to it, you will never know what justice is,” observed Howard Zinn.

So, is justice the scabbard that houses the dagger of the law, or is it the dagger of justice that is housed in the scabbard of the law?

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