Appellate court: Obsolete laws still in force unless repealed

There is no recognition of the doctrine of desuetude in the country, where a statute may lose its force merely by lack of enforcement over a long period without it being repealed, the Court of Appeal says.

In fact, the appellate court in allowing senior lawyer Muhammad Shafee Abdullah to appear for the prosecution in its appeal against Anwar Ibrahim’s Sodomy II acquittal, says the doctrine is not applicable in English and Indian laws.

“Malaysian legislation is perpetual in duration. It continues in force until either it is repealed or expires. For a legislation to lose its applicability, it must be specifically repealed by Parliament.

“It cannot be impliedly repealed simply by the flow of time or inactive use... There has been no recognition of the principle where a statute may lose its force merely through disobedience and lack of enforcement over a long period without express or implied repeal or expiry,” Justice Rohana ruled.

The full text of her judgment was released recently. Anwar (centre, in dark glasses) and his counsel, Karpal Singh (below in photo), have indicated that they will appeal this decision.

In dismissing Karpal’s application to exclude Shafee from leading the prosecution, Justice Rohana, the second member in the three-member panel led by recently-elevated Federal Court judge Ramly Ali, said in her 19-page judgment that the doctrine does not apply in Malaysia.

Anwar and Karpal had sought to disqualify Shafee from leading the appeal on the grounds that his  appointment under Section 376(3) and Section 379 of the Criminal Procedure Code (CPC) and Article 145 of the federal constitution is not valid.

‘Section 379 hardly used’

They argued that since Section 379 has long not been in use, it should be declared as obsolete under the doctrine of desuetude.  

Karpal further claimed the amendment to Section 378 of the CPC means lawyers like Shafee can no longer appear on behalf of the prosecution in any criminal appeal.

However, Justice Rohana disagreed with Karpal as on the plain reading of Section 376(3) on direct appointment by the public prosecutor (PP) and Section 379, an advocate when given a fiat is deemed a public servant.

“With respect, we are not able to appreciate the approach taken by Karpal in his argument that merely focuses on the prohibitive provision in Section 378 to contend that an advocate can no longer appear on behalf of the PP.

“We take the approach that legislative provisions must first be given their plain meaning and each provision of the law cannot be interpreted in isolation. Section 378 must be interpreted in the light of the other provisions. By highlighting the prohibition under Section 378 alone, without considering other related provisions, it may lead to an inaccurate conclusion,” Justice Rohana said.

She said the court also cannot accept that Section 379 is obsolete as it was in use to appoint lawyer Tan Hock Chuan to conduct the Teoh Beng Hock inquest in 2009, a public inquiry, and held the view that it is untenable to suggest this is obsolete because it was not used in criminal matters.

‘Shafee not material witness’

While Karpal also argued that Shafee was at then-deputy prime minister Najib Abdul Razak’s house when sodomy victim Mohd Saiful Bukhari Azlan came there, whom the lawyer deemed to be a material witness, Justice Rohana held that Shafee felt otherwise as he was never called as a prosecution or defence witness.

“It would not be wrong then to infer from that fact alone that Shafee (left in photo) was therefore not a material witness to unfold the prosecution’s case. The fact that he was offered as a defence witness was because his statements were recorded under Section 112 of the CPC.

“Even if his statements were taken under Section 112 of the CPC it does not ipso facto make him a material witness,” she ruled.

Justice Rohana also said Shafee’s role to prosecute in this appeal was nothing different from Karpal’s role in acting for Anwar in the 2001 Sodomy I, since Karpal had disclosed in Parliament that on Oct 22, 1997, the complainant and one of the witnesses had met him regarding Anwar over the case.

“In our view, Karpal’s role then is not too dissimilar than the facts referred to in respect of this issue. We say this because despite him being a potential witness, Karpal acted as Anwar’s counsel during the trial.

“Whereas in the pending appeal, the proceeding would proceed without witnesses as the trial had ended and would be based on appeal records,” she said.

Hence, Justice Rohana added, no merit was found in the grounds of Anwar’s application.

The Sodomy II appeal has been fixed for hearing on Dec 11 and 12.