“INJUSTICE anywhere is a threat to justice everywhere.” – Martin Luther King, Jr.
Charles Dickens, in the novel of Oliver Twist, had popularised the English proverb “the law is an ass, an idiot.” The proverb is expressed in the novel as follows:
“It was all Mrs. Bumble. She would do it, urged Mr. Bumble. That is no excuse, returned Mr. Brownlow. You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction. If the law supposes that, said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is an ass, an idiot’.”
The proverbial description of “ass” refers to the non-literary name of a donkey and relates to where the administration of a particular law and the inflexibility of its application would result in ridiculous and nonsensical verdicts that defeats the interest of justice.
If a particular law enacted does not encompass common sense, the strict application of the words stated in that piece of legislation would result in inconceivable injustice.
In this regard, the law appears to be an “ass” when it is not administered according to conscience and when participants of the legal system are more fixated on the letter of the law as opposed to the spirit of the law.
Lately, much ink has been spilt and comments expressed on the applicability and effectiveness of the Whistleblower Protection Act 2010 (the Act).
Section 6 of the Act states that a person may make a disclosure of improper conduct such as corruption or fraud to any enforcement agency, whilst Section 7 of the Act affords protection to a whistleblower who discloses any improper conduct pursuant to Section 6 of the Act.
Section 9 of the Act grants immunity to the whistleblower from any civil or criminal action as a result of any disclosure of improper conduct.
Some have argued that a whistleblower will not be afforded any protection if the disclosure is not made to an enforcement agency and instead chooses to reveal any improper conduct publicly.
There are also groups that have called for the said Section 6 to be amended to protect those who divulge disclosure of improper conduct, regardless of the manner in which such disclosures are made.
I am certain this discourse would continue.
Section 6 of the Act states that a person may make a disclosure of improper conduct to any enforcement agency based on a reasonable belief.
In this regard, it is germane to note that Section 6 uses the word “may” and not “shall”, and in law, the expression of “may” in a statute denotes that it is permissive and not mandatory.
However, Section 7 of the Act states that upon any enforcement agency being in receipt of the disclosure of improper conduct pursuant to Section 6, a whistleblower shall be afforded protection.
Hence, any disclosure of information not made to an enforcement agency would not be within the ambit of Section 7 of the Act.
But Section 9 of the Act, which provides whistleblowers with immunity from any civil and criminal action, makes no reference to either Sections 6 or 7 of the Act, and therefore it could be construed to apply generally to all disclosure of improper conduct, irrespective of whether it is made to an enforcement agency. This has created some uncertainty and confusion for the public on their right of protection to whistle blow on any improper conduct.
Globally, it is recognised and accepted that the intent and purpose for whistleblowers to be protected is to encourage reporting of improper conduct, such as fraud and corruption.
Lawmakers, therefore, must ensure, when enacting laws, that the letter of the law is not uncertain, ambiguous or inflexible, as justice according to law means applying the law to achieve a sense of orderliness, equality and to provide adequate remedies, failing which the law becomes or appears to be “an ass”.
The letter of the law is what a particular statute states, whilst the spirit of the law encompasses social, moral and ethical concurrence.
The spirit of the law surpasses what is written and conveys the intent and impetus of the law to achieve justice.
Applying the letter of the law without appreciating the spirit of the law would result in absurdity and inconceivable injustice to individuals. If this is the case, then the justice system becomes about the law and not about justice.
Whilst politicians are tasked with enacting laws, there is a fundamental failure on the part of lawmakers to contemplate and take into consideration that judges and lawyers are inclined to follow the letter of the law and not necessarily the spirit of the law, which results in ethical and moral considerations being ignored.
However, it must be appreciated that apart from the words employed in the Act, the spirit of the Whistleblower Protection Act 2010 is revealed in the Act itself, where it states: “an Act to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action…”
It is my view that in instances where the letter of the law conflicts with the spirit of the law, thereby creating an appearance that the law appears to be “an ass”, law enforcement agencies and players in the judicial arena ought to give precedence to the spirit of the law.
Similarly, the courts should avail themselves by taking advantage of their power of judicial discretion to uphold the spirit of the law in order to dispense with justice and fairness, even when the courts’ judicial discretionary power is somewhat constricted because of the letter of the law, so as to arrive at a decision that is fair, rational and just.
Rather than merely following the letter of the law, where in some instances a particular statute fails to take into consideration evolving circumstances, and debatable interpretation on the words employed, the courts should avail themselves to judicial activism by deviating from the conventional approach to the interpretation of statutes, which is not to just look at the objective meaning of the text and uncontrollably adopt legislative unsettled intent, but instead to rule on the facts and circumstances of each case by applying the spirit of the law, because there may be instances where the letter of the law may be logically insufficient and would not provide a fructuous result.
Otherwise, the law becomes “an ass”, and this would undoubtedly create a fertile source of discontent from the public.
The importance of public trust in the administration of the law was artfully stated in the Federal Court case of PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (2019) where the apex court said:
“The courts of justice are the bulwark of a nation. Alexander Hamilton famously recognised, in the doctrine of the separation of powers, that the legislature controls money, the executive controls force, and the judiciary controls nothing. It is in public confidence that the judiciary depends, for the general acceptance of its judicial decisions, by both citizens and the government. The public conforms to the decisions of the judiciary, because they respect the concept of judicial power and judges who exercise such power. Therefore, the trust and confidence of the people in the judicial system to deliver impartial justice comprises the very foundation of the judiciary.”
Though the conventional method of interpreting the law may be applied in cases of similar facts and circumstances, judges should be given the freedom to proclaim that the conventional method of interpretation in some cases is inadequate and deficient, as there will be cases where the courts find that the letter of the law is insufficient or even inane.
Judicial activism is a cardinal role and a necessary tool in the administration of justice, as the law today has become a complex synthesis of processes and engulfed with continuing ambiguity in the letter of the law.
Hence, the courts, in appropriate circumstances, should exercise their judicial discretion by exercising interpretive discretion with the guidance of the five judicial virtues: equality, fairness, detachment, rational explanation and equity.
When the law is an “ass” and lacks in mental reasoning not remedied by rational or logical arguments by lawyers and the exercise of judicial activism, the common man would be reluctant to seek the aid of the courts and instead would resort to “jungle justice” as a substitute.
It would be pertinent and apt to refer to an essay in LawTeacher, which is reproduced herein:
“In 1345, an English lawyer argued to the court, ‘I think you will do as others have done in the same case, or else we do not know what the law is.’ ‘It is the will of the justices,’ said Judge Hillary. Chief Justice Stono rebroke in: ‘No; law is that which is right.’” – The Vibes, January 24, 2022
Datuk Seri Rajan Navaratnam is legal adviser to PETRA News
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