APPEAL COURT DECISION DEFIES LOGIC


The matter that was before the Court of Appeal was purely over a matter of the interpretation of the provisions of Section 30 (3) (a) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694). The section inter alia states:

“ A person to whom an order has been given shall … attend in accordance with the terms of the order to be examined, and shall continue to attend from day to day where so directed until the examination is completed.”

The appeal arose from the decision of the High Court, where Justice Mohamad Ariff Md. Yusof’s made a declaration that witnesses could only be questioned by the commission from 8.30am to 5.30pm on each day.

As much as there are stacks and stacks of statutes being passed by Parliament, the role of the lawyers is to advice their clients as to what  the provisions of a statute mean, as and when an issue arises.

We know that the principal object of the parliamentary draftsman or women is to adopt a method of drafting of legislation in order to achieve certainty. But then being human the conceived certainty could bring about obscurity and could sometimes even lead to absurdity.

That is why books have been written upon the interpretation of statutes. The Maxims referred to in the books are called “Rules of Construction.” No doubt each side of the divide would find and refer to a maxim or rule to counteract each other before a court, makes a just decision.

Be that as it may, in the final analysis the task of the lawyers who are before the court and of the judges is beyond doubt. It is to find the intention of Parliament and the meaning of the words used in a statute.

It was in this premise that the judge of the High Court inquired into the mischief  which gave rise to the formulation of the Malaysian Anti-Corruption Commission Act (MACC) and went on to determine the evil that the Act sought to remedy.

The judge found that the “Principal Object” of the Act was “to promote the integrity and accountability of public and private sector administration …. and to educate public authorities, public officials and members of the public about corruption and its detrimental effects…by constituting an independent and accountable anti-corruption body.”

It was in this context that the High Court judge adopted a construction to be given to the intention of Parliament and gave the words used in the Act, that is,

and shall continue to attend from day to day where so directed until the examination is completed” its plain an ordinary meaning.

It must be noted that Justice Mohamad Ariff Md. Yusof of the High Court did not in anyway pull the language of the draftsmen or women and of Parliament and tear it up to pieces and make nonsense of it.

Neither did the Judge make any alteration to the material upon which it was woven. All that the Judge did was to adopt a purposive approach to solve the question that was posed on the meaning of “and shall continue to attend from day to day” as used in the Act.

The Judge may have taken cognisence of the meaning of the word “day”. The Little Oxford Dictionary states that Day means: “time during which sun is above horizon, daylight, part of day allotted for work…” and would have found that the language used be the draftsmen or women, of “day to day” has brought forth obscurity and based on the claim of the MACC it was an absurdity as it would not have been the intention of Parliament. But then he found that the word “continue to attend” had a purpose.

The Judge decided to exercise his inherent powers and ironed out the creases of the obscurity and decided that “day to day” could not be interpreted as “day in and day out” and  instead of filling in the gaps and making sense of the obscurity and opening up the intention of Parliament to destructive analysis, he drew a pragmatic conclusion based on Article 5 of the Federal Constitution which relates to the “liberty of a citizen” and made a declaration that “day to day” means 8.30am to 5.30pm each day.

Now here arises the amusing part of the basis of the appeal court’s decision which has taken cognizance of the arguments put forth by the Senior Federal Counsel Amarjeet Singh who represented the MACC..

Justice Hasan Lah said “that in the first part, there is no time element involved while there is nothing in the second part of the Section to restrict examination hours to only normal working hours.” But he did not clarify what is “normal” working hours.

Justice Hasan Lah and his fellow judges by setting aside the Declaration of the High Court have grossly overlooked the constitutional rights of a citizen to his personal liberty. The appeal court has made no attempt to find out the intention of Parliament. It has not inquired into the mischief that gave rise to the formulation of the MACC Act. It made no effort to see the evil that Parliament sought to remedy. It miserably failed to conceive the obscurity of the draftsmen or women’s language which was indeed an absurdity.

Further the keystone to the rule of law is the independence of the judges. In order for there to be certainty in justice, the rule of law and its structure, it depends on independent judges. Therefore independent and upright judges must decide on controversies not by adopting the literal approach but use the purposive approach to solve the question before them.

So if every “Declaration” granted by the High Court is going to be set aside by the Court of Appeal on frivolous grounds, then, how and when would the people be governed by established standing laws?

To our mind there will never be any legislation which can be drafted with divine prescience and perfect clarity. If that is the case such laws will be so complicated and would become unintelligible and would be self-defeating.

That is why Parliament has expounded and promulgated legislation with clear principles and in simple and clear language.

But in the situation which we have before us, we have the High Court Judge who has given a declaration as to what the provision of the law means and three Court of Appeal Judges with three heads put into one have made  nonsense of the law, which defies logic and the intention of Parliament.

All you Judges, lawyers and the common people read and comprehend the language written in the law. The perception and understanding of the language have to be generally in accord with common sense and the appreciation of the intent and purpose of the message in the law.

And as far as the decision of the Court of Appeal to interpret “day to day” as not involving the element of time, it appears that the three Judges do not understand the English language.

The simple element is that there is a distinction between “day” and “night”. Night according to the Little Oxford Dictionary means: “time from sunset to sunrise (period of) darkness; nightfall; evening….”

Therefore, the Court of Appeal Judges have not administered and applied the law as it stands. The judges have filled up the gaps from “day to day” and made it “day in and day out” and have done so knowingly. As such the Appeal Court Judges are themselves guilty of a misuse of their powers.

It is now clear and apparent that the Judges are appointed in practice on the advice of the Prime Minister. So, some of them, do not understand what independent judge means. They just show their own extreme political colour. And that is why the people have lost faith in the judiciary. The judges at the Court of Appeal cannot be trusted. They do not know the meaning of leadership and of life.

As Rumi wrote in his poem:

All day I think about it, then at night I say it.

Where did I come from, and what am I supposed to be doing?

I have no idea.

My soul is from elsewhere, I’m sure of that,

And I intend to end up there.

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One Response to “APPEAL COURT DECISION DEFIES LOGIC”

  1. boscopa Says:

    Yes. I am the author of this post.

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