The minefield of justice

Once upon a justice, Greek historian Herodotus recorded the macabre end of Sisamnes, a corrupt judge under Cambyses II of Persia. He accepted a bribe and delivered an unjust verdict. As a result, the king had him arrested and flayed alive. His skin was then used to cover the seat in which his son would sit in judgment.

Pro-death penalty advocates believe that this was a classic minefield for the establishment of justice under Cambyses II. This is what the people expected and accepted, albeit a cruel, unusual, but a nevertheless just verdict.

Ibn Khaldun (1332-1406), like Aristotle, recognised that humans form social communities described in the Arabic concept of asabiyyah — community spirit, group solidarity or simply tribalism. This social cohesion leads to the inevitable creation of the state whose purpose is to protect the interests of the citizens and to defend them against attack.

Protecting the interests of the citizens through the institutions of law and justice is no longer a constitutional safe haven guarantee unless it is slugged out in a court of law where the safe judge, mortally afraid to rock the boat, will become the quintessential expert in applying procedural laws to sidestep substantive law.

The Dred Scott case of 1857 shook the empyrean of judicial integrity in the US Supreme Court as the first minefield that blew justice to smithereens when it decreed that slaves were mere chattels that could be bought and sold under the tenets and strictures of commercial law. “Even God turned His face away from humanity,” reported an American newspaper of that era.

In Malaysia, a judicial minefield unexpectedly exploded in the Abdul Ghani Haroon v IGP cases involving preventive detention under the ISA. A lower court had ruled that a habeas corpus applicant has a right to be present in court during the proceedings. This was roundly overruled by the Federal Court on a distorted and misguided interpretation of Article 5(2) Federal Constitution (FC). Without the detainee’s physical presence in court how could the apex court prove or disprove allegations of torture or custodial death? Crystal ball justice, perchance?

There are multiple judicial horror stories being reported from all over the world ranging from judicial human rights violations to the rights of colonial territories pretending to enjoy self-determination and self-government. Enforcement of a bad decision is not as dangerous or toxic as the basis of that bad decision (ratio decidendi) per se.

Judicial minefields end up in the annals of the law when misguided, misled and misinformed judges are swayed by a particular set of beliefs which they accept as sacrosanct because it neatly fits with their innate private innermost personal perspectives. How many times have you found close kinship reading something, however worrisome, whacky, weird or wise?

In commercial law, the virtually obscure Marquette decision of 1978 in the US Supreme Court saw a slow ongoing explosion of a judicial minefield in 20th century America where credit card companies were jumping for joy that they could charge exorbitant interest rates by moving their offices to other states from the state that they were in that put a cap on interest rates.

Ibn Khaldun acknowledged: “When a nation has become the victim of a psychological defeat, then that marks the end of a nation.” In North America, consumers pay the optional monthly minimum on their credit card bills. In China, banks hate their customers because they pay in full, on time, before penalties and interest rates kick in.

For thousands of years emperors, kings, tzars, shahs, presidents, prime ministers and chancellors, have gone insane, abdicated or died in a quixotic attempt at reconciling law and justice into a tight solid symbiotic relationship. But that can never happen.

It can never happen as long as courts of law depend on the state’s police and prison systems to look after the effect of the cause. If the abstract doctrine of the separation of powers means anything, it means the courts should control their own police and prison systems once that state hands over a criminal defendant to the courts.

Established in 1935, the Supreme Court of the United States Police comes close but it only protects the Justices, employees of the US Supreme Court, the buildings and visitors. Even the bastion and bulwark of republican democracy is unable to get its act together.

We hold our collective breaths awaiting Undi18 leaders’ pleasant surprises.

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