Overhauling Malaysian laws, judicial efficiency

A typical desire of parents is to treat their children equally but usually, this is not necessarily the same as being fair. The same applies to society. 

There is a legal principle in modern democratic society allowing for the use of discretion and fairness, bearing in mind social justice, equality and solidarity in a society.

Lately, there have been cries of unfairness in our laws towards justice. Laws are sometimes seen to be unfair because they are made by people and people are not perfect. Even if laws seem fair at face value, they can be unfair in practice. It is a contrast between ideals and reality.

A person who stole petai (a type of vegetable) is sentenced to more than a year’s jail but high-profile cases of money-laundering were discharged. There were also cases of prison terms and fines not commensurable with the offence. It is socially wasteful to imprison the petai guy when he could be rehabilitated.

Article 8 of the Federal Constitution provides that punishment and sentencing must embody some form of equality and consistency and Article 8(1) provides that “all persons are equal before the law and entitled to the equal protection of the law.”

Professor Emeritus Dr Shad Saleem Faruqi said: “The legal system is built on the traditional but artificial distinction between public law and private law, crimes and civil wrongs, contract and tort, municipal and international law. These distinctions do not always serve us well”.

Parliament should relook at some of the more antiquated and draconian laws to be in tune with current values and expectations. We should purge archaic, outdated and redundant provisions in all laws rather than producing new ones but lacking in enforcement.

Further, we should review the powers of the attorney-general (AG). In a democracy, the position carries great power. I would also suggest for a parliamentary select committee to vet a candidate for the post before forwarding the name to the Agong for appointment. 

We should also consider taking action if the AG misuses power or does something unnecessary and socially wasteful as being discussed in a recent discharge case.

Next, the appointment and effectiveness of judges. There should also be a special committee to vet their appointments. We know they are not properly remunerated and carry a heavy workload. We have also heard of cases involving overbearing, intolerant, and high-handed executives and we also hear cases of fast-track promotions and questionable judges. We need judges who make decisions without fear or favour and with selfless devotion to the law.

Shad also said: “The ideals of rule of law, separation of powers, openness and accountability in government, protection of human rights and the ideals of constitutionalism have not taken roots in our legal system. A large number of lawyers, judges, law teachers and students are legal technicians and lack a social conscience and a social perspective.”

Maybe we need more judges like Judge Francesco “Frank” Caprio whose judicial work is televised on US TV show Caught in Providence.

I guess members from the legal fraternity and many others would have written on these matters and trust the people's representatives will give some serious attention to these calls. It seems politicians are good at formulating laws for self-enrichment such as approved permits (APs) and workers permit, and not looking at critical issues like political funding. Just look at the mess we are in now. - by Saleh Mohammed, Mkini