The lore of the law
30 April, 2023
If you must break the law, do it to seize power: in all other cases observe it. — Julius Caesar, Roman dictator
It is the sine qua non of governments to break, besiege, or bend laws to seize power. It’s their inherent call of nature.
The governed are mandated to obey the law, and they commit treason, according to law, when they seize power from the government. First in point of time is always the winner. First to seize, first to make it right. Hail, Caesar!
And then there is self-serving legislation supposedly made for the supposed benefit and advantage of order in society necessary to keep a civilised citizenry well controlled and regulated.
Punishment is guaranteed when one breaks the law. But there are no rewards for obeying the law. No logic there. Sad but true as it’s generally accepted by all.
Judges and lawyers have a field day with that strange phenomenon called ‘statutory construction’ — a deliberate mischief created by the legislature when they craft, draft and construct legislation.
The legal fraternity goes all out to find the intention of the legislature by engaging in ‘statutory interpretation’ while members of the judiciary vacillate between interpretation and construction involving instruction and correction without direction.
The mischief created by the draftsman and draftswomen working in legislatures are the usual culprits in pretending to put into words what the MPs intended, said and decided. This was exposed in Mills v Meeking (1990) 169 CLR 214; 91 ALR 16.
The Austrian philosopher Ludwig Wittgenstein correctly and wisely advised that we should not ask for the meaning of the law, but instead ask for its purpose and use. M
That is the only focus we should have when grappling with laws that are allowed to affect and otherwise subtly ruin our inalienable rights. We are usually guilty of losing that focus when we ask third-rate lawyers to represent us in litigation.
Lawlessness happens in the wilderness of exploring and understanding legislation. We explore the meaning of the words in legislation to understand what they mean, and if we are fortunate enough, we will discover its purpose and use.
Take for example the Prevention of Crime Act 1959 of Malaysia (POCA) that was enacted to prevent crime, controlling criminals, members of secret societies, terrorists and other undesirable persons.
POCA can only work if its purpose and use are well defined. The phrase ‘prevention of crime’ need not have esoteric connotations and hidden meanings.
The plain and ordinary meaning must suffice. But is POCA effective in preventing crime? Has crime and criminal trials decreased since it was enacted in 1959 and amended several times?
POCA is an example of lawlessness pretending to be law. It may offer great incentives to criminal defense lawyers, but society’s purpose suffers because ‘crime prevention’ sounds like a good idea. Like when M K Gandhi was asked, “what do you think of the British Empire”? He answered, “it is a good idea.”
Whether law serves as a reliable pillar for ethics is also drowning in uncertainty.
Associate Justice Potter Stewart of the U.S. Supreme Court suggested that ethics is knowing the difference between what you have a right to do and what is right to do.
That could also mean that laws are unnecessary if we are ethically motivated knowing our inalienable rights that do not emanate from written constitutions or laws.