The law is an ass

Is Anwar guilty of sodomy? At this point it no longer matters because this is not about Anwar’s guilt or innocence. It is about whether the trial judge made a mistake. And Shafee will need to point out to the judge where this mistake is and for Karpal to counter that with his own arguments.

THE CORRIDORS OF POWER

Raja Petra Kamarudin

Lawyers should never ask grandmas a question if they aren’t prepared for the answer! In a trial, a small-town prosecuting attorney called his first witness, an elderly grandmother to the stand. He approached her and asked; "Mrs. Jones, do you know me?"

She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a young boy, and frankly, you're a big disappointment to me. You lie, cheat on your wife, manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realise you never will amount to anything more than a two-bit paper pusher. Yes, I know you."

The lawyer was stunned! Not knowing what else to do, he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney (the opponent's lawyer)?"

She again replied, "Why, yes, I do. I've known Mr. Bradley since he was a youngster. He's lazy, bigoted, and has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes I know him."

The defense attorney almost died.

The judge asked both lawyers to approach the bench and softly said, "If either of you rascals ask her if she knows me, I'll send you to jail for contempt of court!

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Tan Sri Dato' Seri Sanusi Junid, who is 70, sent me that joke a while ago by WhatsApp. That shows the older generation is more technology-savvy than the younger generation imagines. It is just that the older generation is not arrogant and uncouth and uses the Internet to spew hate, like the younger generation who lacks decency and has a poor upbringing.

'The law is an ass' is from a play published by the English dramatist George Chapman in 1654, Revenge for Honour.

Ere he shall lose an eye for such a trifle... For doing deeds of nature! I'm ashamed. The law is such an ass.

‘Ass’ here means donkey, not the American ‘ass’, which means ‘arse’ or ‘butt’.

Yes, it is the law, as many will argue. But that does mean the law is right. Sometimes the law can be an ass. So what do we do when the law is an ass? Do we meekly accept what they dish out or do we fight back?

That is the difficult part. While we want to maintain law and order and not allow anarchy to rule, we also need to balance between justice and peace. And when rule by law rather than rule of law is the order of the day, then justice will be denied. Just because it is law not only does not make it right but does not make it just as well.

The problem with the law is that it is open to interpretation. And that is why we need lawyers and judges to do that interpreting. And when just the letter of the law rather than the spirit of the law is taken into consideration, we will not see justice. The intention behind that law rather than just what the law says must also be considered.

Secondly, people do this interpreting, meaning the lawyers, and a person will interpret who has the best or correct interpretation, meaning the judge. Hence this whole bunch of people who are not infallible and possess prejudices and weaknesses would allow all these ‘external factors’ to influence their decision.

That is unavoidable and that is why appeals against any court ruling are allowed.

But the appeal hearing is not a retrial. It is merely going over the points of the first trial to see whether the trial judge erred in his decision or whether he or she overlooked certain crucial facts. No new evidence as such is brought into an appeal hearing.

Anwar Ibrahim appealed against his first sodomy conviction and the court ruled that the prosecution had failed to prove its case against Anwar and freed him. Anwar won his second sodomy trial and this time it is the government that is appealing the court’s decision in finding Anwar not guilty of sodomy.

Muhammad Shafee Abdullah, who is going to be leading the prosecution team, will have to convince the appeal court judge that the trial judge had erred. And to do this he needs to point out which part of the trial judge’s ruling is wrong.

Basically, it all boils down to whom has the better argument, a test of skill of sorts. You need to pick out what the trial judge said and explain why what the judge said is wrong.

This is going to be most interesting. It is going to be a contest between Shafee and Karpal Singh. Then, once they are done arguing, the judge will have to decide who argued more convincingly.

Is Anwar guilty of sodomy? At this point it no longer matters because this is not about Anwar’s guilt or innocence. It is about whether the trial judge made a mistake. And Shafee will need to point out to the judge where this mistake is and for Karpal to counter that with his own arguments.

In the first sodomy trial the trial judge found Anwar guilty. The Federal Court, however, thought that the prosecution did a bad job although, as what the court said, it still thinks that Anwar is guilty.

Hence the court does not think that Anwar is innocent. It just thought that the trial judge made a mistake in finding Anwar guilty because although they think that he is guilty they did not think that the prosecution managed to prove that.

Did I not say that the law is an ass?

In this second sodomy appeal the court will have to rule on that same basis. Do they share the trial judge’s opinion that Anwar is innocent? That does not matter any more. Even if they think that Anwar is innocent, did the prosecution manage to prove it?

And if the Appeal Court thinks that the prosecution managed to prove Anwar is guilty and also thinks that the trial judge made a mistake in finding Anwar innocent, then they need to overrule the trial judge’s ruling and send Anwar to jail, even if they think he is innocent.

As I said, the law is an ass.